Small firms’ body ISME has accused the Government of exposing employers to potential legal action by failing to give them “robust” guidance on handling situations where employees choose not to be vaccinated.
In a letter to Tánaiste and Minister for Enterprise Trade and Employment Leo Varadkar, ISME Chief Executive Neil McDonnell acknowledges the “absolute” right of citizens to refuse vaccination.
However, he says some employers believe the Government’s latest Work Safely Protocol published two weeks ago does not address difficulties regarding unvaccinated staff – particularly in smaller enterprises.
The Work Safely Protocol states that a worker does not have to accept the offer of a vaccination.
However, if it is refused, the employer “…must review their risk assessment and decide whether the worker can carry out the work task without vaccination, and what other protective measures are needed”.
The Protocol continues: “There may be certain circumstances where it is deemed that an unvaccinated worker is not safe to perform certain work tasks and in such circumstances the employer may have no option but to redeploy the worker to another work task.
“This decision would need to be agreed between the employer and a medical practitioner in consultation with the worker.”
The Department of Enterprise Trade and Employment has confirmed there are no plans to make vaccination mandatory in Ireland.
It reiterated recent comments by Tánaiste Leo Varadkar that vaccine hesitancy has not really emerged as a problem in Ireland yet.
It also noted that the vaccination programme is continuing with over 2.5 million doses administered.
The Department described the Work Safely Protocol as offering “some initial guidance for employers”.
For example, “an employer might decide that somebody who is not vaccinated shouldn’t be in a customer facing role, perhaps they should be redeployed with agreement to another position within the organisation”.
The Tánaiste has said previously this will be expanded upon “as more of our population become vaccinated and this becomes an issue”.
However, ISME has cited reports from employers with smaller workplaces who are already anticipating difficulties because the capacity to redeploy unvaccinated staff – as recommended in the Work Safely Protocol – is “extremely limited”.
In some enterprises, Mr McDonnell says, certain employees have already communicated their intention not to be vaccinated, while others have voiced “personal safety concerns” about working close to unvaccinated colleagues or customers.
“The proximate issue is the fact that, in not providing for more robust guidance on the handling of unvaccinated employees in the workplace, the Department is unfairly exposing employers to the potential of enforcement action by either the HSA (in the absence of adequate measures) or the WRC (in the enforcement of measures),” he warns.
The ISME letter also raises the issue of the confidentiality of vaccination status, which an employer cannot request to be disclosed to them.
“In the case of those businesses where colleague-to-colleague or colleague-to-client proximity is essential, inevitable, or unavoidable, the employer must know the vaccination status of employees, and must be able to presume employees are unvaccinated in default.”
It continues: “It is well established that employers may request and hold information on employees which is of a confidential nature but they are not precluded from requesting it as it is a matter that is essential to their employment.
“The GDPR regulation also makes clear that the preservation of life takes primacy over privacy at any point where there is a conflict between the two,” Mr McDonnell writes.
ISME insists that where an employee exercises their right not to be vaccinated, the Work Safely Protocol must explicitly acknowledge that the duties of an employer under the Safety Health and Welfare at Work Act(which can result in the indictment of an employer), take precedence.
Mr McDonnell also argues that the Work Safely Protocol devised under the auspices of the Labour Employer Economic Forum “remains entirely compromised because it has been written with large companies only in mind”.
ISME is not a party to the Labour Employers Economic Forum – a fact which Mr McDonnell argues “fatally undermines” the Protocol.