The availability of the vaccine for Covid-19 brings with it a number of difficult dilemmas and balancing acts for employers and those employees that believe they are entitled to a risk-free and safe working environment, as set out in the Safety, Health and Welfare at Work Act 2005.
Employers have a legal obligation under the 2005 act to do all that is reasonable to protect the health of their employees and maintain a safe place of work. Employees themselves also have legal duties and responsibilities under the act to do their best to protect their own health and safety and that of their co-workers.
Mandatory vaccination, as a health and safety measure on the part of the employer, however, may interfere with personal rights, such as a right to bodily integrity under the Constitution and right to respect for private life under the ECHR and EU Charter.
The obligation on employers to provide a safe place of work is not, however, a one- size fits all. Acting disproportionately and dismissing the employee if it is not justified could lead to a successful claim against the employer. For this reason, an employer would be best advised to consider an offer of alternatives if possible before dismissing the employee for refusal of a vaccination and certainly should not harass or victimize for not taking the vaccination .
Considering how employers can meet their health and safety obligations in relation to vaccination, it seems that, at a minimum, employers should provide information and education to employees around the vaccine and encourage their employees to be vaccinated to protect themselves and to help keep the workplace safe. After that employers should consider all other appropriate health and safety measures in the workplace to mitigate against the risk of COVID-19, such as mask wearing social distancing and hand sanitization.
For now at least ,employers cannot mandate vaccinations amongst the workforce. However, employers can and should be proactive around the vaccination conversation in the workplace and make information available to employees about the vaccines.
Employers will also need to update their risk assessments and work safety protocols to reflect the availability of the vaccine. However, although the provisions of the 2005 act oblige employers to take steps to remove or minimize any risks identified arising from their workplace risk assessments, employers cannot mandate vaccination and the vaccine is just one part of the jigsaw in dealing with the COVID-19 threat.
Employers must continue all their existing health and safety measures around COVID-19 including social distancing mask etc for the foreseeable future.