Wednesday, October 20, 2021

James Cox

Frontline healthcare staff who were redeployed due to their vaccination status could present issues for the HSE, according to an employment solicitor.

After a ruling from the Data Protection Commissioner, healthcare staff were required to reveal their vaccination status and moved to non-patient facing roles in certain circumstances.

However, a ‘personal responsibility’ approach is being taken by Government in terms of the return to workplaces and an employment law solicitor believes this will lead to cases where unvaccinated healthcare workers who have been redeployed will be able to request a return to frontline duties.

Richard Grogan told BreakingNews.ie: “There’s a couple of issues coming up at the present time in relation to non-vaccinated employees, particularly in the health area.”

Mr Grogan said not all unvaccinated healthcare workers have been redeployed, particularly in understaffed areas, which adds another “twist” to the issue.

‘Mix and match’

“The first one is the reallocation of people to non-frontline work, but there’s a twist in relation to that, it is not across the board.

“If someone works in an area where there is a critical shortage, the HSE is not allocating them to non-frontline work. There’s a mix and match. If somebody is in a critical area they are not being redeployed by the HSE if there’s a significant shortage.

“That raises whole issues in my mind as to what health and safety assessment has been done. If there’s a health and safety assessment that somebody who is a frontline worker and unvaccinated should not be interfacing with members of the public, then it doesn’t matter if they’re in a critical or non-critical area. They should, or they shouldn’t be, it’s that simple.

“It’s a bit like saying that on a construction site everyone is supposed to wear a hard hat, turning around and saying ‘we’re a bit short on roofers at the moment, and we have a guy who doesn’t like wearing a hard hat, so we’re not going to make him wear a hard hat. That just doesn’t make sense.

“The second issue is whether contractually, even with people who are not vaccinated, in the absence of legislation can the employer actually insist on asking these questions?

“Unless the Government brings in specific legislation for health and safety rules relating to this there is an issue as to whether what the HSE is doing will be legally allowed.

“There will be issues with someone saying ‘I’ve been effectively made redundant’, or bringing an unfair dismissal case, or bringing a breach of contract case to say they’re entitled to be working on the frontline.”

Antigen testing

Unlike other European countries, antigen testing has not been widely rolled out in Ireland.

Mr Grogan feels the German approach of antigen testing at workplaces, whether people are vaccinated or not, would solve a lot of issues.

“This runs to whether the Government is willing to bring in legislation clearing setting out the issue relating to frontline staff. Then they have to set out how far back frontline goes. Is it just frontline staff, or is it the HR, finance as well who could be in different parts of the building? The person working in the coffee shop, how far back do you go?

“One route is if you’re working in a hospital environment you’re either vaccinated or antigen tested.

“That has to apply across the board by way of legislation.

“If private hospitals and nursing homes are going for antigen testing, where’s the legal entitlement for them to do so? There’s the cost element of it too.

“If they’re charging over and above the actual cost there is an issue there.

“If this is being done on the basis of a health and safety assessment in relation to vulnerable individuals across the board, a lot of places can say they have equally vulnerable individuals, 70 and 80-year-old people coming into hairdressers for example.

“What we have at the moment is a complete and utter mess, there are employers outside the health sector left, right and centre simply saying we want people vaccinated.”

What we have at the moment is a complete and utter mess.

He added: “Some employers on construction sites are saying to sub-contractors we want your people vaccinated or antigen testing. If it’s antigen testing the Government needs to pay for it or at least subsidise it.

“If you’re going to go down the antigen testing route it should be antigen testing for everybody. That would mean we’re following the German system.

“In those circumstances there’s no difference between a vaccinated and non vaccinated person because everyone going into the workplace has a negative antigen test.

“The health sector is putting particular pressure on people to be vaccinated. The issue there is we have a shortage of doctors and nurses at the present time.”

He feels there will be a “plethora of litigation” down the line if the Government does not introduce new legislation.

“The whole issue in relation to this is a combination of employment law and industrial relations, the last thing you need is a situation where a person wins a case that then has the effect of derailing everything else.

“The difficulty we have is the return to work protocol makes the whole issue of vaccination and antigen testing off the board, so everything is down to personal responsibility.

“What’s happening in the health service is this was initially brought in for frontline staff, it now appears to be going further. It’s understandable on one side that you have a site, but it’s questionable if the people on that site never have interaction with other people.

Personal responsibility

“Clear and definitive rules would be a benefit for everyone. They’ve brought in this issue of personal responsibility.

“Why don’t we do that for speed limits or tax? We’re going to trust you to pay the right amount of income tax, not to drive too fast.

“I see a plethora of litigation arising in health sectors, win or lose these cases it will not be good for health services generally. Litigation in workplaces just creates animosity and dispute, not a happy and health workplace.”

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