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Employer Caution Required On Staff Covid Vaccination

By DARREN BAIN

Principal

Lignum Advisers

THE Government of The Bahamas has announced it could receive 100,000 doses of the AstraZeneca vaccine beginning during the second half of February, and rolling into the end of the 2021 second quarter.

The prospect of COVID- 19 vaccines arriving in the country is indeed welcomed news for many, and perhaps signals some return to normalcy, especially when it comes to boosting the Bahamian economy.

This news no doubt has caught the attention of many employees, who may have asked the question: “Must I be vaccinated in order to keep my job?”

If an employer mandates that its existing, permanent employees be vaccinated, there is reason to believe such a demand may be based upon section four of the Health and Safety (‘Health Act’) at Work Act.

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees,” the law reads. Relying on section four of the Act, an employer may argue that the requirement to be vaccinated is a “reasonable” order and must be obeyed.

It is accepted that in certain sectors, especially where there is a large number of employees and guests, vaccination along with strict adherence to other COVID-19 protocols may be best to minimise the risk of spreading the virus.

Having said that, an employer ought to exercise caution when seeking to impose vaccination as a requirement for continued employment. Such an imposition may result in the following:

  1. A unilateral variation of the employment contract. Vaccinations were [are] not an incorporated term in the contract of employment. To make vaccinations mandatory without the consent of the employee may result in a claim of constructive dismissal.
  2. Discrimination can occur if only non-vaccinated employees are terminated or lose a benefit, such as reduced work hours or change of position or title. Regard must also be had to persons with disabilities (the Equal Opportunities Act 2014). There may be employees who have “a long-term disability including physical, mental, intellectual, development or sensory impairments, and other health-related illnesses”, which prohibit them from taking any COVID-19 vaccinations, and/or they have been advised not to take them. To insist that such a person be vaccinated to keep his/her job would be discrimination.
  3. The infringement of constitutional rights. It may be the claim of some employees that vaccinations are against their religion. Article 22 of the Constitution provides: Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this article the said freedom includes freedom of thought and of religion.

At present, there is still much to be learnt about COVID-19 vaccines. The timeline of vaccine availability in-country for “all” is unknown. The government has confirmed (for the movement) that COVID-19 vaccination will not be mandatory. This may be instructive to private employers.

Given these variables, and the risk of potential claims by employees, serious consideration ought to be given to alternative policies for minimising the spread of COVID-19.

Employers and employees are encouraged to:

• Make use of working remotely where possible

• Continuously engage in consultation/dialogue

• Make use of established COVID19 protocols

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