By NEIL HARTNELL
Tribune Business Editor
Attorneys yesterday warned that making it mandatory for Bahamian workers to take the COVID-19 vaccine “goes beyond what employers can do” and exposes companies to potential legal liability.
Wayne Munroe QC told Tribune Business that making a person’s continued employment contingent upon them being inoculated against the virus would create the basis for unfair dismissal claims to be brought against Bahamian employers.
Revealing that he is not making vaccinations compulsory for employees at his law firm, he added that doing so could also make companies “responsible” for any “adverse effects” or harmful reactions workers may suffer in response to being inoculated.
Mr Munroe, the Progressive Liberal Party’s (PLP) Freetown candidate in the upcoming general election, also said the policy of requiring workers who refuse to become vaccinated to take a rapid COVID-19 antigen test every five days - which he asserted one prominent Nassau restaurant is mulling - was “fallacious” given that the vaccine only protects those who take it.
He explained that, since a vaccinated person can still pass COVID-19 to someone who has not been inoculated, a company employing such policies would still have to test all staff to ensure everyone is protected.
Speaking after it emerged that some employers were making it mandatory for staff to become vaccinated, unless they could prove there were sound medical reasons for not doing so, Mr Munroe said: “I’ll express it like this. In my considered opinion, if the employee refused and they are terminated, that would be termination for cause.
“The employer would have to pay the employee notice and severance and, depending on the circumstance, they could claim for unfair dismissal.” Confirming that his law firm will not make it compulsory for staff to take the COVID-19 vaccine, he added: “As an employer, in my judgment, I’d have to take responsibility for any adverse effects the employee suffers.
“If you insist your employees take it, you’d be liable for any adverse outcome with the use of these vaccines. I also saw there was a policy where you take the vaccine or a rapid antigen test every five days. The fallacy with that is vaccinated persons can still get infected, and infect other persons. The vaccine protects you; not those around you.
“You still run the risk of vaccinated people affecting other people. That’s a fallacious policy. You have to test everybody to make sure vaccinated people don’t infect others. That’s the problem. For myself, I wouldn’t take the risk or engage in unnecessary litigation over a vaccine approved for emergency use. It only protects the person vaccinated.”
The issue of employers making it mandatory for workers to take the COVID-19 vaccine if they wish to retain their jobs surfaced when a note to staff at the Old Fort Bay Town Centre-based Sushi Rokkan restaurant, owned by Michael Scott QC, was released via social media.
The note warned staff that unless staff produced solid medical evidence as to why they should not be vaccinated by June 30, 2021, they faced potential reassignment or even termination if they failed to become inoculated.
Mr Scott yesterday said he had “smoothed out” any concerns at a staff meeting with Sushi Rokkan’s 30-40 workers, making it clear that “we’re not going to force” persons to take the COVID-19 vaccine if their doctor advises against it while warning that they should “find another job” if other excuses are invoked.
“The whole point is to save lives,” he added. “We had to set some kind of deadline. They understand it, and it’s clear what the regime is. People spend too much time downloading garbage from social media. That’s one reason why the vaccine roll-out has not been as efficient and effective as it could have been. The other one is that the Government does not have enough vaccines.”
John Pinder, director of labour, yesterday asserted the Government’s position that employers cannot make it mandatory, or force workers, to take the COVID-19 vaccine as a condition of retaining their job. He added that complaints had been made about four different employers, who he declined to identify, apart from one being based in Andros, and said: “I don’t know who Mr Scott thinks he is.”
Meanwhile, Obie Ferguson, the Trades Union Congress (TUC) president and a labour attorney, said the umbrella body and its individual trade union members plan to discuss the issue when they meet this coming Monday.
Arguing that Bahamian employers cannot lawfully mandate that workers become vaccinated, he told this newspaper: “That you must be vaccinated in order to work, that is going beyond what the employer can do. I don’t agree that the employer has the right to mandate employees to be vaccinated in order for them to work.
“You cannot make that a condition in order to work. To me, that’s illegal.” Mr Ferguson said he had received “many more calls than I expected” on the issue, disclosing that workers in Exuma and Freeport - as well as New Providence - had contacted him about the matter and how they should respond.
He added, though, that he supported workplaces being made safe by following the Government’s protocols of mask wearing, social distancing and sanitising.