Staff who refuse the Covid jab cannot be kept out of workplace

Staff will be able to return to the workplace even if they refuse the Covid vaccine – and won’t have to tell their employer or colleagues whether they’ve received the jab, according to legal experts.

Employees enjoy powerful rights to privacy and to bodily integrity – including a right to reject medical treatment.

This could mean that companies will not be able to segregate those who refuse to get the jab, nor can they demand to know the vaccine status of an employee.

The situation is set to create a significant business risk, and a legal headache, as many firms plan for the phased return of most workers from August.

Employers across the country will have to carry out a risk assessment in their workplace to determine how to make it safe. What constitutes a safe working environment will vary from business to business, and could potentially lead to social distancing measures being kept in place longer-term.

It is expected the employee’s rights will trump companies’ rights to create a safe environment for other workers and customers, in the absence of specific legislation or further government guidance.

Donal Hamilton, senior associate at McCann FitzGerald, points to government guidance on vaccination and the return to work.

“It’s a voluntary decision of each employee whether or not they decide to take the vaccine, that essentially reflects the legal position,” Mr Hamilton said.

“The employee also has data protection rights that will come into play if an employer is asking the question ‘have you been vaccinated?’ and all of these need to be considered.”

If an employer were to attempt to introduce a mandatory vaccination policy, “the balance we feel is still quite tipped in favour of the employee”, said Mr Hamilton.

He said that there were some types of work where such a regime may be possible, “but they are likely to be very, very limited – it is hard to conceivably think of one”.

Segregating vaccinated and unvaccinated workers will also be legally unworkable, according to Emma Richmond, partner at legal firm Whitney Moore.

“An employer cannot insist on an employee being vaccinated, however an employer still has an obligation under Health and Safety legislation to provide a safe place of work,” Ms Richmond said.

One school of thought is that where it is not possible to provide a safe place of work for vaccinated and unvaccinated staff, a business could look at relocating employees that have not received a Covid-19 vaccine to a separate part of the office.

“But within that, from an employment law perspective it brings up lots of issues, and the potential for discrimination claims and potential infringement of constitutional rights.

"All of that balancing act that will have to be done by an employer in deciding whether they decide to segregate staff,” Ms Richmond said.

Tánaiste Leo Varadkar earlier this month suggested employees may be back in the office by August.

“Provided the vaccine programme continues to gather pace and the virus remains under control, I believe August makes more sense than September,” he said.

The Work Safely Protocol from the Government, which was last updated on May 28, says employers should provide an induction training for workers on their return to work.

The decision to get a vaccination against Covid-19 is voluntary, and workers will make their own individual decisions, the protocol states.

However, employers may wish to provide advice and information on the vaccination programme to help workers make an informed decision, it adds.

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