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17/10/2021

Talk to Tormeys: Return to work, vaccinations and Covid-19

Back to work

A gradual return to workplaces has begun from September 20, under the Government’s new reopening roadmap.

A gradual return to workplaces has begun from September 20, under the Government’s new reopening roadmap.

Many thousands of people have been working from home since March 2020, meaning they could soon be returning to their workplaces for the first time in 18 months.

This will create many concerning legal issues to include a worker’s right to non-disclosure of their vaccination status and whether an employer can compel an employee to be vaccinated.

Currently there is no legislation around requiring proof of vaccination for a return to the office - employers will not be able to ask staff whether they have been vaccinated. Nor can employers mandate their staff be vaccinated before returning to the workplace.

However, workers may be required to attend their workplaces if it is specified in their contract of employment. To ascertain a person’s vaccine status an employer would need to identify a legal basis under the General Data Protection Regulation.

It begs the question then does the position change if a worker needs the vaccine to perform their role? This situation commonly arises in the case of healthcare workers or workers in sterile environments, workers who move from client to client or those who travel as part of their work.

Based on current guidelines, employers are not permitted to require employees to be vaccinated. Employers need to carry out a risk assessment and consider whether reasonable alternatives for workers who will not or cannot take up an offer of a vaccine such as one-to-one conversations, ongoing testing, use of PPE and redeployment.

Employers should bear in mind its obligations under the Employment Equality Acts 1998-2015 when dealing with an employee who is unwilling or unable to be vaccinated.

For example, if the vaccine is not suitable for an individual due to a medical condition, this may trigger an obligation on the employer to provide reasonable accommodation to this employee, such as allowing the employee to continue to work from home while the other employees return to the office, or changes to the role to reduce risk of exposure to COVID-19. The employer should also consider other potential grounds of discrimination where an employee is unable/declines to be vaccinated, for example if the employee declines the vaccine on religious grounds.

Under the current guidelines, employers must, among other things:

Ensure that appropriate hygiene facilities and materials are in place to accommodate workers adhering to hand hygiene measures

Provide tissues as well as bins/bags for their disposal.

Provide hand sanitisers (alcohol or non-alcohol based) where washing facilities cannot be accessed.

Employers are required to ensure that physical distancing is adhered to by using free office space “as much as is reasonably practicable” and organising workers “into teams or pods who consistently work and take breaks together”.

For more information, please contact Tormeys Solicitors.

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