Employment lawyers at Mason Hayes & Curran (MHC) have warned employers that they face a “huge body of work” to facilitate the return of workers to the office as COVID-19 restrictions ease.
In a webinar on vaccinations and returning to work, MHC lawyers also urged employers to be careful not to use any information they inadvertently received about an employee’s vaccination status.
Some employees are due to return to offices on a staggered basis from 20 September, with a more general return to workplaces on 22 October.
MHC senior associate Kady O’Connell said that there were several issues employers needed to start work on now.
These included carrying out an updated risk assessment of their working practices, and implementing measures to prevent the spread of COVID-19 – such as erecting screens and barriers, and introducing one-way systems.
Terms and conditions
O’Connell said companies should also be thinking about how employees came back, and whether there should be staggered starting and finishing times.
She warned, however, that changes in terms and conditions – including working times – might require consultation and consent.
The MHC lawyers also pointed out that, if employers were planning formal longer-term policies on remote working, these would also require consultation and consent.
On the treatment of positive COVID-19 tests and close contacts, O’Connell described the situation as “messy and complicated”, and urged employers to consult a useful flow-chart on the issue on the HSE website.
MHC associate Naomi Pollock told the webinar that employers should not be asking employees about their vaccination status.
She pointed out that the Constitution protected the right to bodily integrity, meaning that the Government was “extremely unlikely” to introduce any legislation mandating vaccination for employees.
“Even if they did, it is likely that any such legislation would fail if it were challenged before the courts,” she added.
The Data Protection Commission (DPC) has also published guidance stating that employers cannot ask employees about vaccination status, as personal health data is a special category under GDPR.
Exceptions ‘difficult to justify’
Pollock said that the DPC guidelines did allow for exceptions – for frontline healthcare workers, for example.
“In theory, an employer could carry out a risk assessment to check whether it was necessary for their workplace to require vaccination,” she said.
But she added that it would be “quite difficult” to justify such a policy, unless there was a very strong health-and-safety justification, and that there was a risk that an employee could submit a complaint to the DPC.
The MHC lawyer said that some employers might inadvertently become aware of a worker’s vaccination status without asking. She warned, however, that they should not act on this information.
“If an employee feels they are being treated differently as a result of their vaccination status, there is a risk that they could being an equality claim to the Workplace Relations Commission,” she told the webinar.