# Interesting Covid related Employment case



## odyssey06 (26 Jan 2021)

An office-based worker had no option but to resign from her job during the first Covid-19 lockdown after her employer rejected her plea to work remotely from home, according to the Workplace Relations Commission (WRC).









						Woman 'had to resign' after she was denied remote work
					

An office-based worker had no option but to resign from her job during the first Covid-19 lockdown after her employer rejected her plea to work remotely from home.




					www.rte.ie


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## Leo (27 Jan 2021)

This will be very interesting as the vaccine rolls out. Who'd be an employer now when you will have to juggle staff who won't want to come in to a work environment unless everyone has been vaccinated, and then others who for whatever reason do not want to be vaccinated...


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## Merowig (27 Jan 2021)

Leo said:


> This will be very interesting as the vaccine rolls out. Who'd be an employer now when you will have to juggle staff who won't want to come in to a work environment unless everyone has been vaccinated, and then others who for whatever reason do not want to be vaccinated...



I doubt that is a valid reason -  staff can decide to vaccinate themselves (when it becomes generally available) - they can't insist others need to... and if one is vaccinated - what is the interest then if others are or are not - unless you can't get it yourself due to medical issues.

And doubtful individuals will be forced to reveal their vaccination status


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## Leo (27 Jan 2021)

Merowig said:


> I doubt that is a valid reason - staff can decide to vaccinate themselves (when it becomes generally available) - they can't insist others need to...



How does that tally with the employer's duty of care?


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## Merowig (27 Jan 2021)

There are limits to that - employers usually can't force vaccinations upon staff (there are exceptions - e.g. soldiers in some armies have to accept vaccinations against their will). 
If vaccines become widely available - then staff can decide to get the vaccine - I do not see how and why this vaccinated staff can demand that colleagues need to be vaccinated as well. There is no reason to ask for that and there is no lack of care on the employer side as it is then with the staff to get the vaccine for themselves and that vaccinated staff is not effected if others are not vaccinated.


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## odyssey06 (27 Jan 2021)

If the person was in a role that involved close contact with people who either couldn't take the vaccine or the vaccine would not be effective for them, then the employer could insist on vaccination as a condition of employment. This is already the case for some healthcare roles for other vaccinations.

_(to muddy the waters it is not totally clear if the vaccine prevents transmission, but let's assume it does)_


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## Clamball (27 Jan 2021)

I wonder if a hospital employee or patient will sue the HSE for failure to prevent hospital acquired Covid. After all hospitals are all over infection control but they seem to be failing big time against this virus.  I know of a hospital Porter who missed out on the vaccine because he was self isolating due to being a close contact.  Went back to work a few days later and caught the virus.  Should he sue?  I have seen people say that after several week stay in hospital they suddenly turn up positive.  Should they sue?


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## odyssey06 (28 Jan 2021)

Clamball said:


> I wonder if a hospital employee or patient will sue the HSE for failure to prevent hospital acquired Covid. After all hospitals are all over infection control but they seem to be failing big time against this virus.  I know of a hospital Porter who missed out on the vaccine because he was self isolating due to being a close contact.  Went back to work a few days later and caught the virus.  Should he sue?  I have seen people say that after several week stay in hospital they suddenly turn up positive.  Should they sue?



The porter may have a case for an occupational injury compensation (if long term consequences) but without evidence of negligence, just because you contracted the virus would not appear to be grounds to sue. There have been cases brought by patients who acquired infections in hospitals during surgery e.g. MRSA and I think they had to show negligence.


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## Purple (28 Jan 2021)

odyssey06 said:


> There have been cases brought by patients who acquired infections in hospitals during surgery e.g. MRSA and I think they had to show negligence.


I'd be interested in seeing the current data for MRSA in hospitals now that the doctors and nurses are actually bothering to clean their hands.


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## Leo (28 Jan 2021)

Merowig said:


> There are limits to that - employers usually can't force vaccinations upon staff (there are exceptions - e.g. soldiers in some armies have to accept vaccinations against their will).
> If vaccines become widely available - then staff can decide to get the vaccine - I do not see how and why this vaccinated staff can demand that colleagues need to be vaccinated as well. There is no reason to ask for that and there is no lack of care on the employer side as it is then with the staff to get the vaccine for themselves and that vaccinated staff is not effected if others are not vaccinated.



All down to the situation. I presume you understand that just because you have been vaccinated does not mean you will not be affected? It is also likely that vaccination will have to be periodic in order to maintain protection, so as your protection wears off, unvaccinated colleagues are exposing you to greater risk.

As I mentioned above many of the HR specialist firms are already advising on return to work protocols. Example:



> *Can employers make it a mandatory health & safety requirement for employees to be vaccinated?*
> If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory also mandate the vaccination as a health and safety requirement. It would, however, be risky to say that a refusal to get the vaccine would necessarily amount to a health and safety breach by the employee warranting disciplinary action.



Employer surveys are showing hiring will become biased towards those who are vaccinated.


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## Merowig (28 Jan 2021)

Good article - thanks 
It is definitely some sort of minefield - the government already declared that there won't be mandatory vaccinations.
Requiring staff to get the vaccine is likely doable in the Health and Care sector, etc - questionable though for Blue Collar jobs...
GDPR, Constitutional rights, Discrimination, ...









						‘Less keen’ nursing home staff could refuse weekly Covid-19 testing – HSE | BreakingNews.ie
					

The HSE is considering the introduction of weekly Covid-19 testing in nursing homes




					www.breakingnews.ie
				



Nursing Home Staff can refuse weekly Covid testing as there is no law for mandatory testing in place.


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## Leo (28 Jan 2021)

Merowig said:


> Good article - thanks
> It is definitely some sort of minefield - the government already declared that there won't be mandatory vaccinations.
> Requiring staff to get the vaccine is likely doable in the Health and Care sector, etc - questionable though for Blue Collar jobs...
> GDPR, Constitutional rights, Discrimination, ...



Absolutely is a minefield. The government already buckled to the teachers unions in not reopening special needs education because the safety of teachers and SNAs couldn't be guaranteed. That's the start of a slippery slope.

Health screening as a pre-condition of employment is common here. You don't have to answer all the questions asked, but they don't have to hire you if you don't. Vaccination doesn't fall under the recognised grounds for discrimination under employment law here, unless you manage to claim it's religious persecution.


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## Clamball (28 Jan 2021)

It is all a mine-field.

I was thinking that it may be easier for a patient or employee of a hospital which is catering to Covid +ve patients to show negligence because prevention of spread of this specific illness is all that is talked about day after day, and by now 10/11 months into the pandemic the hospital systems should not be lacking in any way.  

Not that I am advocating people sue, it’s just if I was on a jury I would be very sympathetic.


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## Leo (28 Jan 2021)

Clamball said:


> Not that I am advocating people sue, it’s just if I was on a jury I would be very sympathetic.



Most employer / employee grievances will go the the WRC, much easier for the employee with a lower bar in terms of cost and no jury.


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## Clamball (1 Feb 2021)

I was listening to the CMO tonight and someone asked him about reports of people who contracted covid19 in hospital suing the HSE.  So it is happening already.


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## Merowig (2 Mar 2021)

Employers cannot dismiss employees who decline vaccine
					

Vaccines to protect against Covid-19 are in high demand globally, but taking the vaccine is not compulsory.




					www.rte.ie
				



That's good news  first



> An employer may seek to redeploy individuals who decline the vaccine or may seek to have them continue to work remotely until such time as the country has reached full vaccination, at which point employees who have not been vaccinated pose less risk to their colleagues who have been vaccinated.


That is poorly worded imho  - first the vaccines are highly efficient. The people who are not vaccinated are primarily a risk to people who can't be a vaccinated due to medical risks. And if a wide percentage of the population got the vaccine we would have then herd immunity. You never will have everyone vaccinated in the first place.



> Another scenario that could arise is if an employee is required to travel for work. An employer will need to know if the employee has been vaccinated so that they can assess the risk of sending that person on a work trip abroad.
> 
> Ms McEnery said employers are awaiting guidance from the Data Protection Commissioner. "When we get guidance from the Data Protection Commissioner we'll know more about what we can ask, which is another advantage."



That will be interesting - also interesting to know if the employee would be required to answer to the questions. In my opinion vaccination status is private medical data and only of real importance in some key roles like medical and care staff, etc.
A friend of mine in Germany is going to be sent by his company to the Czech republic tomorrow for two weeks - he is not vaccinated obviously. Seems it is not a problem in other countries what is deemed problematic in Ireland.
and btw Hairdressers opened up yesterday in Germany - and they are not vaccinated...


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