As the National Vaccination Strategy continues to gather pace in Ireland and the Government moves to re-open the economy, employers in Ireland are asking whether employees can be excluded or included in Return to Office Work (RTOW) plans based on vaccination status. In the absence of clear public health guidance addressing the significance of vaccination status and how such data can be used in employment and HR related decision-making and planning around RTOW, the safer option for now appears to be to disregard vaccination status when planning RTOW in Ireland. It seems counter intuitive but the legal risks associated with penalising an employee (for example through exclusion from the workplace or transfer to a different role) make this a more complex analysis than appears at first sight. In addition, the Data Protection Commission in Ireland has recently issued guidance which does not favour the processing of personal data related to vaccination status except in very limited circumstances which will not apply to most employers outside of acute healthcare settings. In our recent update, we look at the current legal risks associated with using vaccination status as a factor in RTOW planning and the means of minimising those risks.
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