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Employers who ban staff from office for not getting vaccine on ‘shaky’ legal ground – expert

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Numerous vaccines are still being developed and are likely to be ready later this year or early next year but there is no legal basis for mandatory vaccination policies, says one employment law expert. Photo: David Cheskin/PA Wire

Numerous vaccines are still being developed and are likely to be ready later this year or early next year but there is no legal basis for mandatory vaccination policies, says one employment law expert. Photo: David Cheskin/PA Wire

Numerous vaccines are still being developed and are likely to be ready later this year or early next year but there is no legal basis for mandatory vaccination policies, says one employment law expert. Photo: David Cheskin/PA Wire

Employers who ban staff from the workplace who refuse to get a Covid-19 vaccine are on “shaky” legal ground, it has been warned.

Employment law expert Alan Hickey said there was no legal basis for mandatory vaccination policies.

He said a company could face a discrimination claim if a worker was sanctioned for refusing to get a vaccine and told not to come into the office or be dismissed.

He said it was an issue that was likely to be a big concern for employers – particularly in the health service and nursing homes – when the first Covid-19 vaccines become available.

Numerous vaccines are still being developed and are likely to be ready later this year or early next year.

“As matters stand, our view is that employers would be on shaky ground if they seek to make vaccination a condition of employment,” said Mr Hickey, services and operations director at employment law consultancy, Peninsula Ireland. “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.”

He said Irish citizens enjoyed a broad set of personal rights that were protected by the Constitution and European charters and conventions.

Employees may not want to have a vaccine for many reasons. They may have been advised not to due to a pre-existing condition or because it could have a negative impact on their mental health.

Workers could also object because of their religious beliefs or due to concerns about side-effects.

He noted that protests by anti-mask and anti-vaccination activists were becoming more common. Mr Hickey said although the Government recommended various vaccine programmes, none were 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,” he said.

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He said a Government-mandated instruction would give employers a stronger legal basis to have a vaccination requirement. But in the absence of any legislative obligation, there was no real legal basis for employers to insist on it.

Employers in some sectors may seek agreement with staff to have the vaccine.

However, he said it had not been confirmed whether any sector was considering this.

Employers in sectors that do not involve caring for vulnerable people, like offices or retail, will find it more difficult to try to introduce a restriction.

When asked if the HSE would require staff to get a Covid-19 vaccine if it became available, a spokesperson indicated that this had not been decided.


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