Frontline health staff will have to indicate their Covid-19 vaccination status if it is requested by their employer under a new directive due shortly from the HSE.
This will come following a ruling from the Data Protection Commissioner that vaccination may be considered as a “necessary safety measure” in certain situations, including frontline health services.
The HSE will write to staff indicating that it may seek information about their vaccination status as part of a risk assessment for other staff and patients, according to The Irish Times.
A new approach from the HSE will see staff members moved from patient-facing duties where a risk is deemed to exist.
Overall risk
However, the person could be left in the position if a change would increase overall risk, for example a situation where no qualified staff member is available to replace them.
The Data Protection Commissioner had found that there is no legal basis for employers to collect information about employees' vaccination status.
However, it is considered a “necessary safety measure” in exceptional situations such as frontline health.
While the HSE has said the vast majority of staff have taken up the offer of vaccination, it has not been able to provide figures for the number declining it.
The Data Protection Commissioner said the processing of vaccine data “is likely to represent unnecessary and excessive data collection for which no clear legal basis exists”.
This was “particularly the case” in the absence of public health advice about collecting such data.
The guidance notes that current public health policies outline a limited set of circumstances where vaccination should be offered “as a workplace health and safety measure”.
“There may be further situations, such as in the provision of frontline healthcare services, where vaccination can be considered a necessary safety measure, based on relevant sector specific guidance.”
It points out that the Medical Council's advice states that doctors should be vaccinated against common communicable diseases.
“In these situations it is likely that an employer will be in a position to lawfully process vaccine data on the basis of necessity.”
Physical distancing, masks, ventilation and home-working remaining in place “irrespective of the vaccination rollout” are all part of Government workplace protocols.
“There remains a full suite of measures that employers should employ to maintain workplace safety before considering whether knowledge of vaccination status is a necessary measure.”
Personal data
Employers are required to implement all these measures that avoid processing of employees’ personal data “in the first place”.
A person's vaccination status is afforded extra protections under data protection law, while the decision to be vaccinated is voluntary.
“This further suggests that Covid-19 vaccination should not in general be considered a necessary workplace safety measure and consequently, the processing of vaccine data is unlikely to be necessary or proportionate in the employment context.”
The Data Protection Commissioner points out that individual workers are not in control of when they will receive a vaccine under the national rollout, while a large number of younger staff may not be fully vaccinated for several months.
These reasons mean seeking out information about vaccination status can not be considered “necessary or proportionate” in most situations.
“For these reasons, there does not appear to be a sufficiently evidence-based justification to consider that knowledge and processing of vaccination status can be considered necessary in employment at this time.
“Employees should not be asked to consent to the processing of vaccine data as this consent is not likely to be freely given.”
