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23 December 2020
Can employers provide vaccines to employees?
Should employers be encouraging vaccination?
Should employers pay for vaccines?
How will a COVID-19 vaccine affect employers' risk assessments?
Can employers make it a mandatory health and safety requirement for employees to be vaccinated?
What if employees have religious or other objections?
What if employees have medical reasons not to be vaccinated?
What does this mean for employers?
With a vaccination against COVID-19 in sight, many employers in Ireland will understandably be eager to have their employees vaccinated in hope of their workplace returning to some form of normality. This article explores some of the legal issues of which employers must be aware.
The government has confirmed that those aged over 65 and in long-term care, frontline healthcare workers in direct patient contact and those aged over 70 will be the first to receive the COVID-19 vaccine. It is clear that healthier, younger members of the public will be the last to be offered a vaccine and that vaccines will not be commercially available for some months.
The government will likely issue guidance for employers in due course when the vaccination is ready and available for use. Given that the Safety, Health and Welfare at Work Act (SHWWA) 2005 obliges employers to carry out risk assessments to identify health and safety risks to people in their workplaces and take steps to remove or minimise any risks identified, it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace.
This is not currently an option as a vaccine is not commercially available. However, if employers require employees to be vaccinated as a health and safety measure (discussed further below), they must pay for the cost of the vaccination.
Many employers will be happy to pay for the COVID-19 vaccination, in a similar way that large numbers of them do for flu vaccinations. For 2020, due to the pandemic, Revenue agreed not to seek a benefit-in-kind charge in respect of employer-subsidised flu vaccines. Revenue may decide to do something similar in respect of the COVID-19 vaccine, to encourage employers to pay the cost of the vaccine for their employees.
Employers will need to update their risk assessments to reflect the availability of a vaccine when it is rolled out more widely. In view of the potential for individuals to refuse a vaccination (see below), risk assessments may need to determine whether additional measures can be put in place if employees choose not to be vaccinated.
This will be of greater importance in certain settings (eg, health and care) where COVID-19 is a notifiable disease under the Infectious Diseases Regulations 1981 (as amended) and choosing not to have the vaccination would put patients at risk.
As mentioned above, the SHWWA obliges employers to identify and reduce workplace risks as part of their risk assessments. To meet those duties, it is highly likely to be reasonable for employers to ask employees to be vaccinated. Employees also have a duty under the SHWWA to cooperate with their employer so that the employer can comply with their duty to reduce workplace risks.
If employers could show that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, having carried out a risk assessment, they could in theory also mandate the vaccination as a health and safety requirement. However, it would be risky to say that a refusal to get a vaccine would necessarily amount to a health and safety breach by employees warranting disciplinary action.
In particular, while the vaccine will prevent recipients from getting ill from COVID-19, it is still unclear whether someone who has received the vaccine could be asymptomatic but infectious. Accordingly, prevention of the spread of COVID-19 to other employees in the workplace will not necessarily amount to a legitimate justification for mandatory vaccination in the workplace, as the vaccinated person could still be infectious (although presumably significantly less infectious than if they were symptomatic). There is still not enough evidence on this point, but employers should take this factor into account when carrying out their risk assessments.
Moreover, the Constitution protects certain personal rights of Irish citizens, including the right to bodily integrity, privacy and autonomy. These have been held to mean that competent adult patients must consent to medical treatment and can refuse it. However, where a contagion threatens public health, the public interest might override these individual rights. If legislation is introduced to implement mandatory COVID-19 vaccination, the risk to public health of a contagious disease could potentially justify the state's intrusion on personal rights.
However, there is no evidence to suggest that the government will introduce a mandatory vaccination programme and no indication as to whether the Health Service Executive (the largest employer of healthcare workers) will require staff to have the COVID-19 vaccine when available. Therefore, employers in sectors other than health and care will probably find it more difficult to introduce a mandatory vaccination policy.
A recent survey for the Irish Pharmaceutical Healthcare Association found that 33% of the public were unsure whether they would get a COVID-19 vaccination and 12% said that they would not get it. Younger people are the least likely to have a COVID-19 vaccine, although the survey does not reveal the reasons why.
The Employment Equality Acts (EEA) 1998-2015 protect employees against discrimination on grounds of religion. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. However, as a result of other beliefs of those religions (eg, not eating or using animal-based products), followers may refuse a COVID-19 vaccination because of its ingredients (eg, pork gelatine).
Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found by a UK employment tribunal to amount to a belief capable of being protected under the United Kingdom's equality legislation (for further details please see "Vegans protected by Equality Act: what does it mean for employers?"). However, in Ireland, there is no general 'belief' ground under the EEA, so protection under Irish equality law is unlikely to extend to cover non-religious beliefs such as ethical veganism.
By contrast, people with religious beliefs against a vaccination may be protected under the EEA. Therefore, mandatory vaccination policies may be indirectly discriminatory and unlawful unless they can be objectively justified.
It is possible that employees with certain medical conditions will be advised against or choose not to be vaccinated. Such employees may be 'disabled' for the purposes of the EEA. The definition is so broad that most medical conditions are likely to fall within it.
Further, the UK government has published guidance advising against the vaccine for people who are pregnant, breastfeeding or those who may become pregnant, due to the limited amount of data available at present.
Therefore, a blanket mandatory vaccination policy could amount to unlawful indirect discrimination unless it can be objectively justified. Indirect discrimination occurs when an apparently neutral policy or practice adversely affects a particular group of people with a protected characteristic (eg, those with disabilities or who are pregnant).
Employers will need to consider vaccination as part of their risk assessments and should be encouraging employees to get vaccinated once this becomes a realistic possibility. If employers intend to mandate a COVID-19 vaccine as part of their approach to reducing risks, they will need to scrutinise the justification for the policy and consider whether there are reasonable alternatives. Legal advice should be sought as a mandatory vaccination policy may also give rise to discrimination claims.
Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group does not automatically mean that they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone's refusal is what the employer perceives their religion to be.
Vaccination policies that are indirectly discriminatory could potentially be objectively justified as a proportionate means of achieving a legitimate aim. Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely. Vaccination policies may be a proportionate way of achieving those aims, although this will depend on the way in which they are operated and the impact on individuals.
A policy which, for instance, allows employees to return to offices only if they have been vaccinated and leaves other workers working at home could well be justifiable. The legitimacy of employers' aims and whether their policies are proportionate are questions to which the answer may vary over time. For example, once 'herd immunity' has been established, it will be harder to justify not making any exceptions for vaccine-objectors.
At present, it seems clear that a COVID-19 vaccine is still many months away from being made commercially available. These questions will all need to be considered in light of the circumstances and guidance existing at that time, so employers should not be looking to make any definitive decisions on their policies just yet.
For further information on this topic please contact Síobhra Rush or Niamh Crotty at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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