In my article in the 27th February 2021 issue of the Sunday Business Guardian, I provided my preliminary view on Covid-19 vaccination in the workplace. Since that time, the issue has become even more hotly debated, with many becoming increasingly vocal and entrenched in their positions. Vaccines are also more accessible now than they were in February, taking the discussion out of the realm of the academic and into the practical. This therefore seems like an appropriate time to take a second ‘jab’ at what has evolved into a somewhat controversial public issue.
At the outset, it is important to note that the validity and enforceability of mandatory workplace vaccination policies has not yet been tested before the Trinidad and Tobago Courts. Until it is, public discourse on the topic is still speculative. Unfortunately, it seems that many employers may need to make decisions about how to deal with Covid-19 vaccination in their workplaces without the benefit of absolute legal certainty. In these circumstances this Article will focus, not on whether mandatory vaccination policies are enforceable, but rather on providing context for some of the legal and industrial relations principles that employers should bear in mind when determining what decisions to make in their own businesses.
Changing the Terms and Conditions of Employment:
As a general rule, the unilateral imposition by an employer of a new term or condition of employment is not valid or enforceable unless and until agreed to by employees. Where an employer attempts to unilaterally vary the terms and conditions of employment, this may amount to what is known as a ‘repudiatory breach’ of the employment contract or conduct deemed to be harsh, oppressive or contrary to the principles of good industrial relations practice.
It is not every breach or the variation of every term that will be considered a repudiatory breach, but only those that are ‘essential’ or ‘material’. To date, the question of whether requiring employees to be vaccinated against Covid-19 would be considered ‘essential’ has not yet been tested before the local Courts.
An employee may respond to a repudiatory breach of the employment contract by resigning. In such a case he can claim constructive dismissal as in law the contract would be deemed to have been terminated by the employer’s initial breach, and not by the employee’s resignation. As a general rule, in order to claim constructive dismissal, an employee must first resign from employment. Alternatively, an employee may agree to the change in his terms and conditions of employment, either expressly or by continuing to work under the new terms. In such a case, the terms and conditions of employment will be considered to have been validly varied and the revised terms will have legal effect.
The question of changing the terms and conditions of employment does not arise in the case of new employees. As a general rule, an employer may include a mandatory vaccination requirement in the terms and conditions of employment offered to a new employee, and that employee would then then be free to accept or reject employment on those terms. This is however subject to compliance with the discrimination regime set out in the Equal Opportunity Act, discussed in more detail below.
Health and Safety in the Workplace:
Under the Occupational Safety and Health (‘OSH’) Act, employers have a statutory duty to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all their employees. This duty also extends to persons who are not their employees, but who may be affected by their operations. Employees too have a duty to take reasonable care for their own safety and the safety of others.
Is Covid-19 vaccination reasonably required in order to ensure safety in the workplace? This has yet to be tested before the local Courts. However, it is a question that calls for a considered and careful assessment and may vary from workplace to workplace, and even between positions and worksites in the same business.
To date, the Ministry of Health and the Occupational Safety and Health Authority have not yet updated their existing Covid-19 workplace guidelines so as to take vaccination into account. While it is possible that they may do so in the future, for the time being this leaves employers to make their own assessments of what is reasonably required.
The OSH Act contains an existing framework that may assist employers in this regard. Section 13A of the Act requires an employer to make a suitable and sufficient annual assessment of the risks that its employees and others might be exposed to whilst at work, and to identify the measures that it should put in place to ensure workplace health and safety in the context of these risks. An employer also has an obligation to review and update its risk assessment where there is reason to believe that it is no longer valid or where there has been a significant change in the matters to which it relates. In the context of the Covid-19 pandemic, an employer arguably has a duty to update its workplace risk assessment to address the potential risks posed by Covid-19 and the protective measures that should be put in place in order to safeguard employees from those risks.
From a practical perspective, conducting a careful and thorough workplace risk assessment is an important and valuable first step towards developing a vaccination policy. Both the risk assessment itself, and the process leading up to it, are likely to tease out and provide clarity regarding (a) the general risks posed by Covid-19 in the workplace (b) any specific or heightened risks that are may arise in relation to certain positions, processes or work sites (c) the relative importance of those positions, processes or sites to the operations of the business (d) the range of preventative measures available (e) the efficacy and suitability of those measures across different positions, processes and sites (for example, not all positions or activities can facilitate alternative preventative measures such as remote working or physical distancing) and (f) the cost and practicability of the different preventative measures.
This analysis is valuable as it provides employers with an underlying business justification for their vaccination policy, helps to align their policy with the particular needs and risks of their business (as opposed to a generic or ‘one size fits all’ approach) which in turn helps to ensure that the policy is proportionate to those risks and needs. From a practical perspective, it can be used as a tool to help the business to prioritize its efforts and streamline its messaging in cases where some employees are vaccine hesitant. By contrast, a generic policy that applies equally to all employees across the board is likely to be both a tougher ‘sell’ to employees, and to be more vulnerable to challenge at Court.
In theory, a workplace risk assessment may differentiate between the protective measures that vaccinated and non-vaccinated employees are required to follow. It would be important for such an assessment to address why such a differentiation is reasonably required in order to ensure workplace safety.
The Equal Opportunity Act (‘EOA’) prohibits discrimination in employment on the basis of, among other things, disability and religion. Notably, this applies to both existing and to new and prospective employees.
It is possible that an employee may have a medical reason for not taking the vaccine. In general, an employer is prohibited from terminating, refusing to employ or otherwise treating a disabled employee unfavorably due their disability. However, the duty owed by an employer to an employee with a disability is not an absolute one. Section 14 of the EOA provides that this duty (emphasis ours):
“…shall not apply to the employment of a person with a disability if … the person because of disability — (i) would be unable to carry out the inherent requirements of the particular employment; or (ii) would, in order to carry out those requirements, require services or facilities that are not required by persons without a disability and the provision of which would impose an unjustifiable hardship on the employer; (b) because of the nature of the disability and the environment in which the person works or is to work or the nature of the work performed or to be performed, there is or likely to be — (i) a risk that the person will injure others, and it is not reasonable in all the circumstances to take that risk; or a substantial risk that the person will injure himself.”
Section 14 has not been tested before the Equal Opportunity Tribunal in the context of Covid-19 vaccination. However, in deciding how to apply its vaccination policy to employees with medical reasons for not being vaccinated, the employer can consider whether:
- Being vaccinated in an inherent requirement of the job;
- An unvaccinated employee would require additional services or facilities that vaccinated employees would not require, and the provision of same would impose an unjustifiable hardship on the employer; or
- An unvaccinated employee would pose a safety risk to himself or others.
The workplace risk assessment (discussed above) would be a valuable tool in this regard.
Unlike in disability cases, there is no objective third party ‘proof’ that can be requested as to the validity of a religious objection to vaccination. Pronouncements made by religious bodies are informative, but not necessarily conclusive to an individual’s personal faith and beliefs. The employee’s previous vaccination history (to the extent that this information is already available to the employer) may be a useful indicator as to the genuineness of a religious objection but is not in and of itself conclusive.
That said, the duty owed by an employer to an employee with a religious objection to vaccination is also not an absolute one and an employer should be able to take into account the same factors outlined above in deciding how to treat with them.
Legally speaking, the question of whether mandatory vaccination policies are enforceable has not yet been conclusively determined. However, many employers are faced with deciding how to deal with Covid-19 vaccination in their workplaces without the benefit of absolute legal certainty. In this regard, securing employee agreement and buy in remains the ideal first step. Where this proves difficult or impossible, employers will need to make a judgment call balancing the different risks to their business and the considerations outlined above. As with many things Covid-19 related, it is all about weighing the risks and making an informed decision, in an external environment that continues to evolve.