by Síobhra Rush, Partner in the Employment, Immigration and Reward division at Lewis Silkin, based in the Dublin office.
With a vaccination against coronavirus in sight, many employers in Ireland will understandably be eager to have their employees vaccinated in the hope of their workplace returning to some form of normality. This article explores some of the legal issues.
Can employers provide the vaccination to their employees?
The Irish 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.
Should employers be encouraging the vaccine?
We expect the government to 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 2005 (SHWWA) obliges employers to carry out a risk assessment to identify health and safety risks to people in their place of work, and then 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.
Should employers pay for the vaccine?
This is not currently an option as a vaccine is not commercially available. However, if an employer requires an employee to be vaccinated as a health and safety measure (discussed further below), it is required to 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.
How will a vaccine impact an employer’s risk assessment?
Employers will need to update their risk assessments to reflect the availability of the 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 if additional measures can be put in place if an employee chooses not to be vaccinated.
This will be of greater importance in certain settings (such as 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.
Can employers make it a mandatory health & safety requirement for employees to be vaccinated?
As mentioned above, the SHWWA obliges employers to identify and reduce workplace risks as part of its risk assessment. 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 co-operate with their employer so that the employer can comply with its duty to reduce workplace risks.
If an employer 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, it could in theory also mandate the vaccination as a health and safety requirement. It would, however, be risky to say that a refusal to get the vaccine would necessarily amount to a health and safety breach by the employee warranting disciplinary action.
In particular, while the vaccine will prevent the recipient 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 Covid19 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 the employee was symptomatic). We do not yet have enough evidence on this point, but employers should take this factor into account when carrying out their risk assessments.
Moreover, the Irish Constitution protects certain personal rights of Irish citizens, including rights to bodily integrity, privacy and autonomy. These have been held to mean that a competent adult patient must consent to medical treatment and can refuse it. Where a contagion threatens public health, however, 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.
There is, however, no evidence to suggest that the government will introduce a mandatory vaccination programme and no indication as to whether the HSE (the largest employer of healthcare workers) will require staff to have the Covid-19 vaccine when available. Employers in sectors other than health and care will therefore probably find it more difficult to introduce a mandatory vaccination policy.
What if the employee has religious or other objections?
A recent survey for the Irish Pharmaceutical Healthcare Association found that 33 per cent of the public were unsure if they would get the vaccination and 12 per cent said 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 1998-2015 (EEA) 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 in those religions – such as not eating or using animal-based products – followers may refuse the vaccination because of its ingredients (e.g. 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 UK’s equality legislation. In Ireland, however, 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.
In contrast, people with religious beliefs against the vaccination may be protected under the EEA. Mandatory vaccination policies may therefore be indirectly discriminatory and unlawful unless they can be objectively justified.
What if the employee has medical reasons not to be vaccinated?
It is possible that employees with certain medical conditions will be advised against or choose not to take the vaccine. Such employees may have a disability for the purposes of the EEA. The definition is so broad, so most medical conditions are likely to fall within it.
Furthermore, the UK government has published guidance advising against the vaccine for women who are pregnant, breastfeeding or those who may become pregnant, due to the limited amount of data available at present.
A blanket mandatory vaccination policy could therefore 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 grouping of people with a protected characteristic, such as those with disabilities or who are pregnant.
What does this mean for employers?
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated once this becomes a realistic possibility. If an employer intends to mandate the vaccine as part of its approach to reducing risks, it 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 upon the way in which they are operated and the impact on the individual.
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 the employer’s aims and whether its policy is 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 we are still many months away from a vaccine being made commercially available and these questions will all need to be considered in the light of the circumstances and guidance existing at that time. It would be premature for employers to make any definitive decisions on their policies just yet.