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Employers can’t ask workers about their vaccination status

Public health advice would have to change to allow employers to seek the information

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Employers could end up facing discrimination claims if they sought information on vaccination status. Stock image

Employers could end up facing discrimination claims if they sought information on vaccination status. Stock image

Employers could end up facing discrimination claims if they sought information on vaccination status. Stock image

Employers cannot force workers to produce Covid certs as a staggered return to the office stretches ahead over the coming months.

Restaurant and hotel managers can ask customers for the digital passes to prove they are fully vaccinated, but employers cannot legally request them from staff.

This means vaccinated and unvaccinated workers may be sitting in the same office but could not eat in a café or restaurant together at lunchtime.

Fears about containing the virus have grown, as case numbers have surged and prompted some employers to delay plans for a full return to the office.

When asked if employers could legally seek Covid certs, a Data Protection Commission spokesperson referred to a document that says they are not entitled to request an employee’s vaccination status.

“As a general position, the Data Protection Commission considers that, in the absence of clear advice from public health authorities in Ireland that it is necessary for all employers and managers of workplaces to establish vaccination status of employees and workers, the processing of vaccine data is likely to represent unnecessary and excessive data collection for which no clear legal basis exists,” reads the document.

The Processing Covid-19 Vaccination Data for employment document says this is the case if there is no public health advice on what the purpose of the data collection would be.

“For example, advice as to what employers would be expected to do with knowledge of vaccination status of workers ie to send non-vaccinated workers home or segregate vaccinated and non-vaccinated workers in workplaces?” it says.

Public health advice would have to change to allow employers to seek the information.

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In contrast, a Data Protection Commission spokesperson said the operators of some indoor premises have a legal basis under regulations to process data revealing vaccination status.

“The regulations place a legal obligation upon the operators of relevant indoor premises to verify patrons’ vaccination status, subject to enforcement by authorised compliance officers,” she said.

“Where an operator of a relevant indoor premises fails to comply with the requirements of the regulations, they may be guilty of an offence.”

Employment law solicitor Síobhra Rush of Lewis Silkin said employers could end up facing discrimination claims if they sought information on vaccination status.

“This was all up in the air until the guidance from the Data Protection Commissioner,” she said. 

"It  could be difficult from an employee relations perspective, as staff could ask ‘what are you doing to make the workplace safe?’ and don’t want to be sitting beside a colleague who is unvaccinated, but because it is sensitive personal data, employers shouldn’t be using it." 


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