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COVID-19 Vaccination: Key Questions for Global Employers

COVID-19 Vaccination: Key Questions for Global Employers

While it will be some time before the COVID-19 vaccine becomes available to the general public, employers may be starting to think about what vaccination means for their employees and the eventual return to work.

Together with our Littler colleagues across more than 45 jurisdictions, Ben SmithCaroline Baker and Dónall Breen have contributed to “COVID-19 Vaccination: A Littler Global Guide on Legal & Practical Implications in the Workplace” for Ireland and the UK. The guide covers the key employment and labour questions surrounding the COVID-19 vaccine including: whether employers can require or incentivise vaccination, the employee privacy and data protection issues implicated, whether employers can take into account vaccination when hiring, and how vaccination will impact on remote working.

Some of the key points for Ireland and the UK are below. If you have would like to request a copy of this resource, please contact your usual GQ|Littler contact or email info@gqlittler.com.

Can employers require employees take the COVID-19 vaccine?

The UK & Ireland

Realistically, no. There is no specific prohibition on but on standard employment law principles it will be extremely difficult for employers to justify requiring the vaccine given the Irish and UK government, respectively, have not made the vaccine mandatory. Employers can, however, encourage employees to take the vaccine (see below)

Employer-mandated vaccination presents several significant risks to employers:

  • breaching the implied term of trust and confidence in employment contracts, giving rise to constructive dismissal claims;
  • legal arguments that the requirement is an unconstitutional encroachment upon an employee’s private life (in Ireland only);
  • data protection issues; and discrimination risks.

If employers can’t require vaccination, can they encourage it?

The UK & Ireland

Yes, but this should be limited to ‘soft’ forms of encouragement that do not put pressure on employees. This might cover activities such as information campaigns or allowing paid time off to attend vaccination appointments.

Offering direct benefits to employees such as bonuses or additional employee benefits is not recommended, as it creates a discrimination risk. 

Can employers keep records of employees who are vaccinated?

The UK & Ireland

Potentially, but employers will need to carefully consider their data protection obligations.

Vaccination data will be special category personal data so will need to be collected and processed with particular care. Employers must be satisfied that they have a legal basis for collecting this data and that it is necessary. Once collected, employers must comply with their data protection obligations, particularly transparency, proportionality, data minimisation, and strict confidentiality must be maintained.