HSE allowed to question frontline staff about vaccine status following data commissioner ruling

Frontline health staff will have to indicate their Covid-19 vaccination status if asked by their employer under a directive due shortly from the HSE.

This follows a ruling by the Data Protection Commissioner that vaccination may be considered as a "necessary safety measure" in certain situations, including frontline health services.

On foot of the ruling the HSE plans to write to staff indicating that it may seek information about their vaccination status as part of assessing risk to patients and other staff during the pandemic.

Where a risk is deemed to exist the member of staff may be moved away from patient-facing duties under the approach developed by the HSE.

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However, if such a move would increase the overall risk – for example, because no qualified staff member is available to replace them – the person could be left in position.

In a ruling that may have widespread implications for a return to workplaces in the autumn, the Data Protection Commissioner had found there is no clear legal basis for employers to collect information about the Covid-19 vaccination status of their staff.

However, in exceptional situations such as frontline health, vaccination may be considered a “necessary safety measure” and data can be collected.

The HSE has said the vast majority of its staff have taken up the offer of vaccination but has been unable to provide figures for the number declining it. There have been anecdotal reports of lower take-up rates in specific areas of the health service and of the State.

The Data Protection Commissioner noted there was no clear advice from public health authorities telling employers to establish the vaccination status of workers.

Given this, and as a general position, it found 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” when there was no public health advice about the purpose of collecting the data.

Health policies

According to current public health policies there are a limited set of circumstances in which vaccination should be offered “as a workplace health and safety measure”, the guidance notes.

“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 advises doctors they 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.”

Government workplace protocols require physical distancing, masks, ventilation and home-working remain in place “irrespective of the vaccination rollout”, the guidance states.

“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.”

Employers should implement all these measures that avoid processing of employees’ personal data “in the first place”.

Information about a person’s vaccine status is afforded extra protections under data protection law, and decisions to get a vaccine are 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.”

Younger staff

The Data Protection Commissioner points out that individual workers are not in control of when they will receive a vaccine under the national rollout, and many younger staff will not be fully immunised for several months.

For these reasons it is not clear seeking information about their vaccination status can 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.”