Balancing the scales of rights and obligations – The latest battle for employers in the war of Covid-19
DBASS Blog | June 2021
“The secret of change is to focus all of your energy, not on fighting the old, but on building the new.”
Wise words from Socrates, but I wonder if he had a global pandemic in mind at the time? It certainly captures what we have all had to do in the fight against Covid-19, and this next phase-the rollout of vaccinations, while optimistic, also brings its own set of challenges.
With the vaccine rollout well and truly underway, employer’s can now start to think about planning the safe return of their employees back to the workplace.
It goes without saying that employers are the gatekeepers for the health and safety of their employees and in order to secure their return to the workplace employers will have to strike a balance between their own obligations under the Safety, Health and Welfare at Work Act and the protection of their employees’ rights to privacy.
With the addition of constitutional and equality issues, an employer’s optimism can easily turn into a “Covid headache”.
So what exactly do these issues entail?
Currently, employers can’t mandate for their employees to be vaccinated and to date there has been no indication that the Government intends to introduce legislation for compulsory vaccinations. Our Irish Constitution provides for a person’s fundamental personal right to bodily integrity (i.e. the right not to have your body or person unjustifiably interfered with) as well as the right to autonomy and privacy. Therefore, making a vaccine mandatory does not bode well with these core rights.
Under the Employment Equality Acts 1998 – 2011, employees are protected from discrimination on the nine grounds including religion, age and disability. An employee may decide not to get the vaccine for a number of reasons that would fall under these specific grounds, such as a medical condition or their religious beliefs. Therefore, it is important to note that any mandate by an employer that employees need to take the vaccine could constitute discrimination under this Act.
Naturally employers would prefer to know if their employees have been vaccinated or not before bringing them back to the workplace. However as this is employees’ personal data, there must be a legal basis to do this. The grounds for which are set out in Article 6 of the General Data Protection Regulations. Employees are not legally obliged to provide personal medical information to their employer.
However, employers may seek vaccination information on the basis that they are meeting their legal obligations under the Safety, Health and Welfare at Work Acts. Realistically, it will be up to individual employee to volunteer this type of information to their employer.
Employers will need to take care not to disclose who has or has not been vaccinated.
So now that we have considered the issues relating to a return to the workplace at this point in the pandemic, what steps should an employer take to ensure a compliant and hassle free return?
Assess the Risk
Under the Safety, Health and Welfare at Work Act, an employer must carry out a risk assessment of the workplace and any potential risks that have been identified must be addressed. The Work Safely Protocol should be adhered to in all workplaces.
Scientists are still not clear on whether or not the vaccine prevents the spread of Covid-19, so employers should insist that all employees follow the safety protocols that are put in place, whether they have been vaccinated or not.
Remember, employees too have responsibilities under the Safety, Health and Welfare at Work Act. They must work together with their employer and adhere to all guidelines and protocols implemented to protect themselves and their colleagues from potential risks. This could reasonably include the risk of Covid-19 infection.
Put In Place A Communication Plan
As with most employee issues, communication is key when it comes to encouraging your employees’ to get vaccinated. With a well-designed communication plan your company can boost vaccine confidence and uptake to ensure a safe, supportive, and inclusive workplace for all employees. This can be done by:
- Actively encouraging your employee’s to take the vaccine by providing up to date information from reputable resources
- Prepare an FAQ document of the questions you think your employee might have, such as “Once I receive the vaccine, how long does it take for it to work”
- Prepare a Covid-19 vaccine policy for your employees, ensure you cover items like, what is the company’s policy on time off for vaccine appointments, returning to work following vaccination etc.
- Open door policy – who can employees go to if they have concerns or questions in absolute confidence.
While it is hoped that the majority of people will take up the offer of vaccination, planning and good communication will help ensure a smooth transition for when employees return to the work place.
In the meantime employers can do their part by ensuring health and safety policies and procedures are up to date, risk assessments are carried out and adhering to Work Safely Protocol will all help in getting employees back to the workplace.
However, it is still an ever changing landscape with further twists and turns to navigate through so it is very important to constantly stay informed.
Regularly review the progress of the national vaccination programme https://www2.hse.ie/screening-and-vaccinations/covid-19-vaccine/rollout/ and public health advice https://www2.hse.ie/coronavirus/ as this impacts employers and employees in the safe return to the workplace.
Be adaptable and flexible in your plans and encourage a culture where employers and employees work together.