Mandatory vaccination – a thorny issue for employers
From the United States to Israel, from Australia to Ireland – most agree that a rapid rollout of the Covid-19 vaccination is the key to reopening the economy.
But already, employers, unions and lawyers are grappling with thorny issues around vaccination – including what happens when an employee does not want to get vaccinated.
Publican Noel Anderson, who chairs the Licensed Vintners Association, is desperate to reopen his two bars: Lemon and Duke in Dublin city centre, and the Bridge in Ballsbridge.
“Our industry is decimated,” he says. “I have colleagues who have been closed for nearly 13 months. We ourselves have been closed three times and I’ve had to lay off 70 staff three times. There is nothing more difficult.
But with vaccination rollout central to government decisions to reopen, businesses are beginning to ask what they should do about staff who refuse to be vaccinated without good cause.
“We’ve had LVA members contacting us to say what would be the implications of opening with vaccinated staff and only letting in vaccinated customers. That’s not for the LVA to give guidance on, that’s up to the Government – but that conversation is happening,” he confirms.
A survey last January by human resources technology firm HR Locker of 750 employers in the UK and Ireland revealed that 40% of respondents would be prepared to dismiss an employee who refused to get vaccinated without a reasonable excuse.
23% of organisations polled planned to mandate vaccination for their staff.
However, a mandatory vaccination policy would bring huge employment law, human rights and constitutional issues into play – and critics warn it could give rise to employee claims for discrimination, unfair dismissal or adverse health reactions to the injection.
The Irish Council for Civil Liberties argues that it would be “very questionable” on legal grounds if employers tried to take unilateral action to force employees to take a medicine.
“We have in this country a public health strategy based on principles of consent, trust and solidarity – and any actions by employers trying to discriminate between employees threatens to undermine that and I think would be illegal,” says ICCL Chief Executive Liam Herrick.
He also fears compulsion could trigger a backlash and undermine the key aim of widespread take up of the vaccine.
He argues the issue is hypothetical at present, given that so many people are simply unable to access the vaccine.
“We’ve written to the Government seeking a clear message that there will be no tolerance of discrimination on the basis of vaccines,” he confirms.
However, employment lawyer Richard Grogan argues the situation is far from hypothetical, and that jobs may be at risk for those refusing vaccination.
“The reality is that under the Health Safety and Welfare at Work Act employers have to take care of the health of staff,” he notes, adding that issues may arise in getting unvaccinated people back into the office.
He says he does not like the phrase mandatory vaccination but adds: “If an employer cannot bring people back into the workplace, there are going to be job losses – and those who are vaccinated will be back in the office, and those who aren’t will lose their jobs.
“From barbers to hairdressers to restaurants – how can they operate if people aren’t vaccinated? It won’t just be an issue of no jab no job – it will be no jab no entry, as we’ve seen in other countries.”
Mr Grogan acknowledges that no one can be forced to take a vaccine – but warns that if employees cannot return to on-site working alongside other colleagues without a reasonable excuse, such as a disability, they may be redundant, as they can no longer do their job as the employer requires.
The Department of Enterprise, Trade and Employment confirmed that employers cannot compel employees to be vaccinated.
However, it acknowledges that there may be situations where, following a risk assessment, it is deemed unsafe to allow a unvaccinated person to carry out their duties.
It recommends in such instances that the employer should consider redeployment, with the consent of the employee.
However, it does not address what happens if there is no alternative role available within the company.
Mandatory vaccination would be fraught with legal and human rights problems – and is undoubtedly a nettle that no one wants to grasp.
But as the vaccine rollout progresses, employers like Noel Anderson and his colleagues will be awaiting guidance from the Government on how to handle this potentially controversial issue.