Could workplaces bar anti-vaxxer employees if they refuse coronavirus vaccine? – advice by Alan Hickey, Services and Operations Director at Peninsula

For many, the prospect of a COVID-19 vaccine is a welcome turn of events, especially if it could provide a way out of the pandemic crisis and the lifting of restrictions. There is significant interest in how the vaccine might be rolled out, and we are also now seeing some curiosity around whether or not employers could insist on staff taking a vaccine. As matters stand, our view is that employers would be on shaky ground if they seek to make vaccination a condition of employment. Irish citizens enjoy a broad set of personal rights that are protected by the Constitution. The decision to take a vaccine will ultimately be a personal one for the employee to make and in the absence of a specific law dealing with the COVID-19 vaccine, employers don’t appear to have any legal basis to adopt a mandatory vaccination policy.

At present, the Irish authorities recommend various vaccination programmes, but none are compulsory. There is also no evidence to suggest that the government is going to implement a blanket instruction for every person in Ireland to have the vaccine. Whether employers would therefore be able to ban people who refuse to take the vaccine from coming into work could only be determined on a case by case basis.

On the one hand, there may be some industry sectors that seek to implement a requirement for its staff to have the vaccine for particularly acute health and safety reasons. For example, operators in the caring sector, or the health service, will likely want to reduce the chances of a further COVID outbreak in their workplaces and see the vaccine as a critical method for doing this. However, there is no confirmation that any sector is currently considering this, and it does remain to be seen if this is an option that would be explored.

In workplaces that do not involve caring for vulnerable people, such as offices or retail, it may be considerably more difficult to try and put in place such a restriction. There could be several reasons why employees do not want to take the vaccine; they may have been advised not to due to a pre-existing disability, or the prospect of taking it may be having a negative effect on their mental health. They may object to the vaccine due to their religious beliefs. If they are subjected to a sanction for refusing to take the vaccine, such as being told not to come into work or even being dismissed, the company may face a costly discrimination claim.

It remains to be seen if and when a vaccine will become available, and it is anticipated that restrictions will need to stay in place for some time regardless. For now, employers should remain patient and see how the situation develops.

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