The new close contact rules coming into effect today have been described as a "complete disaster" by an employment law solicitor who said the fact employers cannot ask about the vaccination status of staff is a "major issue".
As the Omicron wave continues to impact the country, the following changes are now in place:
- Asymptomatic close contacts who have received the booster jab should no longer have to restrict their movements for five days.
- They will instead be advised to wear a medical grade mask or a FFP2 for 10 days, and to take regular antigen tests.
- Close contacts who have not received a booster should restrict their movements for seven days.
- People who test positive for Covid should isolate for seven days
- Positive results from antigen tests should no longer require confirmation with a PCR test.
Richard Grogan told BreakingNews.ie that while the new rules will help with staffing issues, the fact that employers are prevented from asking about vaccination status and antigen testing will present "huge issues".
"In the situation where a workplace outbreak occurs, the first thing is the employer can’t ask any of them if they are fully vaccinated. This then comes down to personal responsibility, I accept that probably 99 per cent of people have been good with this, but if you take an employee who is in an organisation that does not have sick pay or pay for when people are self-isolating, because even if there is a sick pay scheme, and you’re self-isolating, you’re not technically sick, so they can get away without paying you. You’re now down to a situation where the employer cannot check with the employee if they are fully vaccinated.
"This will lead into problems with other employees, who could say ‘I know this individual is not vaccinated, and they’re sitting beside me’. The employer can’t do anything about that, they may be told the person isn’t vaccinated, but they can’t take it into account.
"Then you have other employees in the place who can put in a health and safety complaint. You now have a situation where other employees could say, ‘we’re not having anything to do with him/her’. Now it opens up issues around bullying and harassment, and the whole issue of discourse in the workplace."
He said the lack of guidance around whether an employer, or employee, should foot the bill for antigen testing and the recommended higher grade medical masks will also cause issues.
"The employee turns up to work as a close contact, let’s assume the employee has said, ‘there’s no problem with me, here’s my booster certificate’ even though they’re not required to show it. So they show it, and the employer says ‘that’s great, now what about your mask and your antigen testing?’
"The employer currently can’t put in antigen testing, to require people to be tested when they get in before mixing with other staff. The employee can just say, ‘I’ve taken an antigen test’, and the employer can’t ask to see it
"The other issue is, the employee can say ‘I’m happy to take an antigen in work if you pay’, the employer could argue ‘hold on, you’re the close contact you can pay for it’.
"The next thing is masks. Can the employer say ‘I’m sorry, you don’t have a medical grade mask’. Is it up to the employer or employee to provide it?"
This has all the hallmarks of something that is going to result in a massive amount of litigation and industrial disputes in workplaces.
Mr Grogan feels that there could also be issues over staff who have not received the booster vaccine and are designated as close contacts.
"If an employee stands up to walk out because they’re a close contact, so they’re going home for seven days, the employer may say ‘hold on, we all know you’re vaccinated’, the employee is within their rights to say ‘you can’t ask me that question’. People can just decide it suits them to have seven days off."
"What the Government is bringing out with these guidelines is welcome for opening up businesses, but they have done absolutely nothing as to how this is going to be applied in practice," he added. "This has all the hallmarks of something that is going to result in a massive amount of litigation and industrial disputes in workplaces because the Government won’t address the issue."
The Data Protection Commissioner is in charge of the GDPR law that prevents employers asking about vaccination data. However, Mr Grogan pointed to the example of the Health Service Executive, where the law does not apply because it is a health issue.
He said the National Public Health Emergency Team (Nphet) could recommend that this situation is replicated across other businesses.
He added that this could also open the door for clear legislation on antigen testing in the workplace.
Free-for-all
"Those rules have been changed for the HSE for example, because the HSE said this is a health issue, so we’re allowed to ask these questions. Nphet needs to come out and say this is something that is a health issue, therefore you can ask, and you can insist on antigen tests. If they don’t do that effectively what we have is an absolute free-for-all. The issue with people who are close contacts, particularly those on lower rates of pay with no sick schemes or pay if you’re a close contact, will simply turn up at work.
"With the current rules, even if the employee has symptoms there is nothing to stop them coming into work and the employer can’t say ‘you’re coughing and sniffling, I want you to take an antigen test’, the employee can say ‘you can’t ask that’.
"It doesn’t even need the Government to directly intervene, Nphet can say this is a health issue and an employer can do this, can insist on antigen testing and that employers can ask about vaccination, the Government doesn’t need to get their hands dirty.
"They didn’t bring out any announcement for the HSE, it was pure medical advice, so Nphet can come out and say that, then that resolves the problem."
"What we’re getting at the moment is a lot of questions from employees who are saying ‘I am not happy being in the same room with people when I don’t know if they’re vaccinated or testing’," he added.
"This is something that’s questionable under GDPR as it is, it’s going to be a year or so before it’s challenged in the courts, the issue is it needs to be clarified to bring certainty for employers and employees. This is as much for the employee sitting in the office who has no symptoms and is not a close contact, a lot of people have family at home who are immunocompromised."
Mr Grogan said the Government is behind the issue as a lot of employers are already insisting on antigen testing in the workplace.
"The Government are behind so many problems, a significant number of employers are saying ‘no test, no job’. In these situations people are saying this is a breach of GDPR and the employers are saying ‘well, sue me’. This will happen but as the law stands at the present time, if I have a contractor coming into my office I can say nobody is coming in until I see their vaccination cert. The contractor can’t ask them that, and I can say that’s your problem, we’ll go with someone else. I’m not saying that’s a reasonable approach, but it’s legally sound because the person coming in is not my employee.
"In a restaurant they can ask for my vaccination status, I can ask the person serving me, or cutting my hair, if they’re vaccinated, but their employer can’t.
"This is going to be a considerable problem for both employers and employees. The group being forgotten about in this is the employees who are perfectly healthy sitting in the office, they are most likely to kick up about this with close contacts coming into the office. A lot of companies with a sick pay scheme will say they’re not paying close contacts. Even if employers could ask for antigen testing for close contacts, it would solve 99 per cent of problems."
Mr Grogan said issues and litigation that arrive over the new rules will be worsened for all by the fact that they are still technically classed as guidance, rather than legislation.
"When the problems arise, and cases end up in the circuit court or Workplace Relations Commission (WRC) the Government will say that’s not our problem, that’s their out, ‘it wasn’t rules, it was guidance and you could disregard it anyway’.
"It would be similar to the Government saying paying income tax is down to personal responsibility, or saying that speed limits are advisory.
Vaccination status
"In Germany workers take an antigen test every three days, vaccinated or not vaccinated, it’s a simple situation, so nobody’s vaccination status is an issue. Nphet and Government are now turning around saying ‘antigen testing is now fine’ why wasn’t it three or six months ago? It’s just because there’s a PCR shortage now.
"Nobody in Government is looking at the practical effects of what they are proposing, nobody has looked at the employment law issues and the problems arising in workplaces during the pandemic. It’s basically a hope and pray approach that they’re taking.
"Some cases will go to the WRC, if the employee wins they’ll go to the Labour Court, the High Court and some to Europe.
"Employers will be on the hook with the Government saying 'it’s nothing to do with us'. And by the time the cases come forward whoever is the appropriate minister will be able to say they weren’t in charge at the time."
