28 Feb Covid-19 Vaccines in the Workplace: Can employers make them mandatory?
The ‘novel’ Covid-19 coronavirus continues to live up to its name, presenting new and evolving challenges for businesses as time goes on. The latest of these is the imposition of what some have termed ‘no jab, no job’ policies, under which employers seek to make it mandatory for their employees to be vaccinated against Covid-19. Are such policies enforceable in Trinidad and Tobago?
Health Matters In the Workplace:
When it comes to matters of health, some could argue that there is an inherent tension between an employee’s right to privacy and autonomy on the one hand and an employer’s legitimate business interests on the other. An employee’s rights in medical matters ought not to be lightly interfered with. However, they are not necessarily absolute. Employers can and do make enquiries and impose requirements on matters relating to employee health. For example, employers can make employment conditional upon employees being medically certified as fit to work, require employees to wear personal protective equipment or even terminate employees on medical grounds.
One can understand why some intrusion into matters of employee health might be reasonable. In certain circumstances, an employee’s health might have a direct impact on their ability to perform their job and in extreme cases pose health and safety risks. For example, a forklift driver with bad eyesight or a roofer with vertigo could potentially pose a danger to themselves and others.
That said, not every intrusion into an employee’s health is justifiable. Where does mandatory Covid-19 vaccination fall along this spectrum?
The answer will be different for each employer and may even vary from job to job or between different worksites within a single organisation. Employers must carefully consider their own specific operational needs and objectives before making any policy decisions.
Employers could have a case for implementing Covid-19 vaccination policies where such policies:
- Are in furtherance of legitimate business objectives;
- Are reasonable and proportionate to those objectives;
- Allow for legitimate exemptions; and
- Are implemented in a realistic, practical and fair manner.
Legitimate Business Objectives:
Some employers might have legitimate business objectives in favour of mandating Covid-19 vaccination, such as promoting workplace health and safety, public health and even customer confidence. However, it will be important for employers to be guided by information and recommendations issued by local health and employment regulators and to assess whether, and to what extent, vaccination actually achieves their desired objectives. For example, the efficacy of vaccination in the prevention of asymptomatic transmission is not yet settled.
Reasonableness and Proportionality:
Even if an employer does have legitimate business objectives, this does not automatically entitle them to impose mandatory Covid-19 vaccination policies. Such policies must be also be reasonable and proportionate.
This means conducting an examination of:
- The risks that an unvaccinated employee might pose; and
- The extent to which such risks can be mitigated by other workplace controls such as social distancing, wearing face masks, sanitisation or remote work.
It may be easier to make the case that mandatory vaccination is reasonable and proportionate in some industries – like health care, travel or hospitality – than in others. The position may even vary from job to job or between different worksites within the same business.
Even where other workplace controls exist, this does not automatically mean that an employer is bound to apply them instead of vaccination where there is a real risk that this would result in lower workplace efficiency, higher operational costs or require vaccinated employees to do more than their fair share of potentially hazardous or burdensome work.
Each employer would need to weigh the potential risks and requirements of their own operations before making a decision.
Some employees may be reluctant or outright refuse to get vaccinated. Their reasons for doing could potentially fall within the protected categories established under the Equal Opportunity Act. The Act prohibits discrimination in employment based on (among other things) disability and religion.
- Disability: It is possible that an employee might have a genuine medical reason for why they cannot be vaccinated. What should an employer do in such a case? As a preliminary step, it must be guided by medical opinion and not the employee’s or its own personal view of the situation. It is reasonable to request that the employee submit a medical from a doctor confirming that they have a genuine medical reason why they cannot be vaccinated.
- Religion: Some religious groups may have an absolute objection to vaccines. Others may have objections to specific vaccines, such as those that involve testing on foetal cell lines. Religious objections may require a more nuanced response than objections based on medical grounds. That said, it is noteworthy that even the Vatican has reportedly issued guidelines for its own employees, warning that those who refuse the vaccine without proven health reasons could face penalties including the termination of the employment relationship.
Even if an employee does have a legitimate reason for refusing Covid-19 vaccination, this does not automatically mean that they would be exempt from a vaccination policy. The employer would again need to consider the risks that an unvaccinated employee might pose, whether being vaccinated is inherent or critical to the performance of the job in question and the efficacy of alternative workplace controls.
It is also important to note that a generalised fear or scepticism of vaccines is not protected under the Equal Opportunity Act.
From a practical perspective, it is also important to ensure that any Covid-19 vaccination policy is implemented in realistic, practical and fair manner. This includes:
- Giving employees advance notice before the policy takes effect
- Allowing employees an opportunity to raise medical, religious or other objections
- Setting realistic timetables for employees to be vaccinated. It may not be practical to require all employees to obtain the vaccine immediately as it becomes available
- Considering offering paid time off to enable employees to both obtain and recover from vaccination
- Being clear on what evidence employers will require in order to prove vaccination
In a unionised environment, consultation with the recognised majority union may also be required.
Regardless of the strict legal position, no employer wants to risk losing or demotivating a good employee because of that employee’s reluctance to be vaccinated. A more strategic and holistic approach would also include education and encouragement rather than a simple unilateral mandate. This would help to ensure employee buy-in to any policy that an employer might wish to introduce.
At webinar held on 24th February 2021 (after this Article was written) President of the Industrial Court, Deborah Thomas-Felix expressed the view that the imposition of a mandatory vaccination policy could amount to a unilateral alteration of the terms and conditions of employment. Unilateral alterations are not valid and in some cases may even be grounds for constructive dismissal claims.
This does not mean that employers cannot introduce vaccination policies. However, it does underscore the importance of carefully considering and prioritising the objectives that that you are seeking to achieve by such policies and the most strategic approach for achieving them. A holistic approach that includes encouragement and employee buy in will be more effective than a unilateral mandate.