It was March 2020 when the Government first implemented restrictions designed to curb the spread of Covid-19 in Trinidad and Tobago. This was followed by the societal adoption of a ‘New Normal’, which had a domino effect on business operations. Since that time the old, pre-pandemic ‘normal’ often seemed like a distant memory. However, on April 4th, 2022 Trinidad and Tobago ushered in the Public Health [2019 Novel Coronavirus (2019-nCoV)] (No. 6) Regulations, 2022. With many of the restrictions on doing business and engaging in everyday activities now lifted, it seems that the country may finally be transitioning to pre-pandemic normalcy. In this Article we will discuss the issues that some businesses might face during the transition period.
Previously, certain businesses were limited to operating and providing services to the public only where they operated as ‘safe zones’ – with all employees being vaccinated, entry being limited to vaccinated persons only, occupancy being limited to fifty per cent capacity and the display of a ‘Safe Zone Certificate’ at the entrance of the establishment.
The establishment of Safe Zones meant that patrons were not allowed entry into food establishments, bars, cinemas gyms or other meeting places without first presenting at the entrance proof of identification and a valid vaccination certificate. This arguably had the effect of inconveniencing the unvaccinated portion of the population, while perhaps offering a sense of comfort to the vaccinated.
The lifting of these restrictions now means that, from a regulatory perspective, businesses are allowed to operate at any time, customers no longer require proof of vaccination for entry and there will be no penalties for breaking safe zone regulations.
As Trinidad and Tobago phases out the ‘new’ and returns to the ‘old’ and with the easing of restrictions on unvaccinated persons, many businesses owners may be left wondering how to balance the opening up of business against the potential increased risk of Covid-19 transmission that opening up might bring.
With the removal of the Safe Zone requirement, can businesses still lawfully request proof of vaccination from customers? Can they refuse service to those who do not confirm that they have been vaccinated?
As a general rule, businesses do have the right to set their own policies or conditions of entry to premises. However, this right is not unfettered.
Limitations on Refusing Entry:
In as much as business owners are allowed to set their conditions of entry, they should be mindful that this freedom is subject to certain exceptions contained in legislation which prohibits certain forms of discrimination.
The Equal Opportunities Act contains certain heads which cover discrimination in a range of areas including the provision of accommodation, entry to premises and the provision of goods and services among them. The protected categories under the Act are: sex, race, ethnicity, origin, including geographical origin, religion, marital status and disability.
Vaccination status is not a specific protected category provided for under the Act. However, in theory it is possible that someone could have religious or medical reasons for remaining unvaccinated. There is therefore a potential risk for indirect discrimination should business owners implement a blanket ban on unvaccinated customers without providing some accommodation for religious or medical exemptions.
That said, from a practical perspective, assessing whether an individual has a valid religious or medical exemption could be difficult to establish, especially where employees are tasked with making quick decisions in a busy environment.
Additionally, Trinidad and Tobago has yet to approve any Covid-19 vaccines for use on children under the age of 12. Businesses will therefore need to give careful consideration as to how any vaccination policy that they voluntarily choose to implement will treat with their abilty to provide services to children.
There is also the risk of public pushback. For example, one restaurant in New York who maintained their policy of requiring proof of vaccination for entry even after the city dropped its vaccine mandate faced protest action.
On the flip side, some business may see continuing to require proof of vaccination as a way to protect employees and customers and to limit the risks of employees contracting Covid-19 and missing work or forcing short staffed businesses to temporarily close operations.
Although the issue is yet to be tested in Trinidad and Tobago, it may be useful to look at what some other countries which have rolled back their Covid-19 restrictions have done. For example, the Scottish Government has advised businesses and event organisers that, while they may wish to continue to check their customers’ vaccination status on a voluntary basis as a way to make customers feel safer, they should first be clear about what they are trying to achieve and how asking people for their status helps to achieve this.
It is advisable for businesses to carefully weigh the pros and cons of voluntarily maintaining a proof of vaccination policy, as opposed to merely adopting one ‘just in case’.
The imposition of restrictions, and subsequent easing thereof, has certainly served as a short-term shock to businesses, but one advantage is that it assists them to adapt and strategize for the long term in circumstances where no one is certain of the next surge or “lockdown” occurring. The business landscape is changing on a daily basis and the most important tool a business can have in these uncertain times is versatility, as no matter what the industry, we are in uncharted waters.
With returned freedoms as a result of the easing of restrictions in Trinidad and Tobago there is even more need for caution by business owners in implementing policies of entry and continued safe zone operations in light of the most recent regulations. It may be best overall to have policies in place that take a community approach and encourage patrons to behave in a responsible manner, and of course infrastructure that lends itself to a higher standard of hygiene and mandates on staff protocols to ensure that best practices are adhered to.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
This Article was authored by Deandra Frederick, Associate at M. Hamel-Smith & Co. Deandra can be reached at firstname.lastname@example.org.