The global Covid-19 pandemic pushed public health to the forefront in a way that few other events have managed to do. As shutdowns forced employees to work remotely, the relationship between companies and workers has undergone a seismic shift. Some experts estimate that up to 20% of the workforce will never return to a traditional workplace.
Covid-19’s effect on the workforce isn’t limited simply to working from home. Even now, as countries around the world, including Ireland, roll out various Covid-19 vaccines, more issues are popping up. Do employees need to return to work before they have the vaccine? Can they be legally required to work without the vaccine? Conversely, can employers require their employees to get the vaccine before returning to work?
We’ll cover some of those major questions in this short article.
1 – Can an employer require an employee to get the new vaccine?
In general, the answer is no. Under some circumstances – particularly in some special jobs – there may be a legitimate health and safety consideration that would require workers to be vaccinated. In those cases, an employer may be able to require their employees to be vaccinated. Those decisions are untested in court, however, and many of them may be rendered pointless by the widespread vaccine rollout which will target frontline workers first as a matter of course.
2 – Can an employee refuse to return to work without the vaccine?
It’s unclear whether or not an employee could refuse to work without the vaccine, unless it would be in very specific sectors where a health and safety issue is involved. Given that the HSE – Ireland’s largest health sector employer – hasn’t required employees to have the vaccine, it will be difficult for employees to argue that they require a vaccine before returning to work.
At the moment, the result is an odd stalemate between employers and employees. Employers cannot require that their employees be vaccinated, and employees cannot refuse to return to work without the vaccination.
3 – Does an employee need to pay for the vaccine?
No Covid-19 vaccines are currently commercially available, and in situations where the vaccine may be required as part of workplace health and safety, it is expected that the government or the workplace shoulder any costs. This is likely to be the case going forward.
With those basic answers in place, what are some further considerations regarding employee rights and the Covid-19 vaccine in Ireland? What issues could develop down the road to further impact the employer/employee relationship? Most of these issues are surrounded by legal uncertainty; be sure to check with a reputable solicitor like O’Brien Murphy Solicitors before making any important decisions.
The biggest potential issue would be mandatory vaccines, either on the national level or by individual employers. Such a vaccine would rest on legally uncertain territory. The success or failure of such a vaccine, in court, would rely on the balance between individual autonomy enshrined in the Irish constitution and a concern on the part of the government to protect the public interest.
On the state level, such a concern might be justified as necessary, potentially violating an individual’s rights to refuse the vaccine in order to protect a far larger number of people. However, any such “common good” argument would certainly be challenged in court.
If defending a mandatory vaccine by state actors proves challenging, then it would appear even more unlikely that any private employer would be able to justify a mandatory workplace vaccination. If an employer requires their employees to be vaccinated, they could expose themselves to legal trouble if and when an employee suffers adverse effects linked to the vaccine.
Beyond the physical harm caused, employees may also face pressure from employers, and even fellow employees, to receive the vaccine. Legal challenges may arise from such pressure, especially if such pressure led to charges of unfair termination.
Given the difficulties of mandating vaccines, most employers are turning to a more positive approach. Employers are allowed to inform employees about existing vaccine programs, encouraging their employees to take part. This more positive approach has been encouraged, as it poses no direct risk to employees and could result in a faster return to “normal” working conditions.
There is also some support for “uneven” policies, like requiring vaccines for employees who wish to return to the office – but allowing those who aren’t willing to take the vaccine to work from home. These practices would seem to respect individual choices while also honouring the employer’s responsibility to provide a safe working environment for their workers.
Given the novel nature of many of the issues, it is safe to assume that the ensuing weeks and months will see most, if not all, of the decisions mentioned above challenged in court. Whether or not they hold up to increased legal scrutiny, and what new challenges may arise, remains to be seen.