Employers should be prepared with a safe return-to-work plan

As the vaccine roll-out continues and Covid-19 infection rates drop, employers must again begin to plan how their employees will be able to return to work safely, be that full-time or in a blended working capacity.

Before this can occur, however, employers will need to carry out workplace health and safety risk assessments to plan how best to protect their employees from the risk of contracting Covid-19 in the workplace. Accordingly, organisations are eager to ensure that as many employees as possible are inoculated, and employers are now exploring options to achieve this aim.

‘No jab, no job’

Commentary from UK media on so-called ‘no jab, no job’ policies has led many Irish employers to query whether they can introduce a policy mandating that their employees be vaccinated before returning to the workplace. Other employers are considering introducing vaccination as a pre-condition of employment for new employees. Whether or not an employer can do this raises complex legal issues.

The Irish courts have for many years recognised that individuals have constitutional rights to privacy, bodily integrity and to refuse medical treatment. A policy requiring employees to be vaccinated will affect these rights, particularly if there is a threat of disciplinary action. Employment equality rights and obligations may also be triggered.

Like all personal rights however, these rights are not absolute, and the Supreme Court has commented that “in the case of contagious diseases, the claims of the common good might well justify restrictions on the exercise of a constitutionally protected right to refuse medical treatment”. This right would be for the Government to implement through legislation. It is unlikely that there will be any appetite in Ireland for such legislation, given existing constitutional protections and the fact that the Government’s Covid-19 vaccine roll-out strategy to date has been focused on offering vaccines to various at-risk groups on a voluntary basis.

Indeed, in the UK, mandatory vaccination is effectively already ruled out..

In Ireland, there may be exceptional working environments where a vaccination requirement may be acceptable, but in the context of Covid-19, those environments are likely to be very rare. It is notable that vaccination has not been made mandatory for even frontline staff working in ICUs or nursing homes. Redeployment to an alternative working environment, or work from home arrangements, will need to be considered where staff are not willing to be vaccinated. This will present challenges for some employers. Consultation with employees and any recognised trade unions will be helpful in those circumstances to develop a workable solution.

The considerations are slightly different where an employer is considering requiring vaccination as pre-condition of employment, and focus on the risk of indirect discrimination on grounds of religion, disability, or potentially other characteristics protected by the Employment Equality Acts.

Returning to work safely, again

Employers should continue to base their return to work plan on the Government’s Work Safely Protocol. Published in December 2020, this is silent on how vaccination of employees should feature in employers’ return to work plans. This will need to change, in time, as employers will need clarity on the extent to which PPE and other precautions will need to be used.

As part of their return to work policy, employers can strongly encourage employees to be vaccinated, and may go so far as to request that employees continue to work from home until they have received the jab. Indeed, some employers are going so far as to introduce shopping vouchers as an incentive for employees to be vaccinated. Both approaches aim to voluntarily encourage a higher proportion of its workforce to avail of the vaccine, rather than adopting a vaccination policy that could lead to legal challenge, or indeed disquiet among employees.

A return to the workplace presents great opportunities for employers and employees. However, employers must walk a careful line. A statutory duty is owed by employers to employees to ensure that they have a safe place to work. Employers must put in place procedures that ensure this safety, while maintaining balance with the rights of their employees. Vaccination will be an important consideration in developing those procedures. With light at the end of the tunnel, employers and employees can look forward to a time when they will be able to return to a more normal workplace.
 

Donal Hamilton is a senior asssociate and Terence McCrann a partner at McCann FitzGerald’s Employment Law Group.

Online Editors