Employers can impose termination condition for unvaccinated workers – PM

By Demion McTair. Updated 5:55 p.m., Tuesday, June 15, 2021, Atlantic Standard Time (GMT-4).

Employers, both in the public and private sectors can impose the condition that workers who do not take the COVID-19 vaccine “may be terminated,” Prime Minister Dr. Ralph Gonsalves said at a press conference on June 15, 2021.

But, Dr. Gonsalves said he is “hoping that we don’t have to come to that, that people will see sense and take up the vaccine”.

Dr. Gonsalves was responding to a question asked of him by a Journalist with the Searchlight Newspaper, Bria King.

The two-part question asked by the journalist:

Will the government be moving towards making vaccination for COVID-19 mandatory for workers in certain sectors and do our current laws permit for this to happen?

And as it relates to the private sector, can an employee be legally terminated if they refuse to take the COVID-19 vaccine?

To which Prime Minister Gonsalves responded:

“My answer to you in relation to the current laws, both in relation to the public sector and the private sector, that you can impose the condition that if you don’t take the vaccine you may be terminated”.

“In the case of both public and private sectors, the employer has a right to have a safe place of work, including a healthy place for you to work, an environment for you to work,” Dr. Gonsalves said, adding that “this is recognized at the Common Law. Various statute law will bolster it, but the common law, it’s there”.

The prime minister also added that there is the obligation on the part of the employee to cooperate with the employer in having a safe and healthy place for work.

He said, however, that employers have to be reasonable on the matter.

He said employees who feel unsafe working in a close environment with unvaccinated workers may report the matter, or the employer can inform the employees that if the COVID-19 vaccine is not taken: “You may be terminated, but they have to be reasonable in terms of the notice”.

“So, for instance, the State, as an employer, the central government and the advice which we have received is that, and I read the law too, you will give a reasonable notice period. Say listen: we’re planning to have persons at this or that in this work environment vaccinated and that we’d make the vaccine accessible to you, whether it’s a two-week period you get or a four-week period in which this is going to be done and if you refuse to take it (the vaccine) you would be considered that this is an act of misconduct and acts of misconduct may lead to your dismissal,” Dr. Gonsalves explained.

Dr. Gonsalves said he is in talks with the Office of the Attorney General on the matter.

“So, a policy and a procedural step would be formally put in place for that to be happening and I’m having a discussion with the office of the Attorney General on precisely this issue, but you asked me it legally and I’ve answered you legally and I’m now talking beyond that that the employer has to be reasonable and the employer has to out a procedure in place,” Dr. Gonsalves said.

“And this is acknowledged across all the common law jurisdictions,” he added, citing recent writings from Grenadian Lawyer and Professor Dr. Francis Alexis and recent policy moves being taken by the United States Of America.

As it relates to the question about vaccination for workers in certain sectors, the prime minister also gave his views:

“We can’t allow, when people [are] travelling again, that they don’t come to your hotel because the workers at the hotel are not vaccinated, that your airport workers are not vaccinated, that your port workers are not vaccinated, I mean, these are critical points,” he said.

Dr. Gonsalves said he is “hoping that we don’t have to come to that, that people will see sense and take up the vaccine”.

THE PUSH FOR HERD IMMUNITY: IS A BALANCE OF RIGHTS NEEDED?

While workplace safety is likely to be used as a key argument to encourage more people to take COVID-19 vaccines, the rights of both vaccinated and unvaccinated workers may hang in the balance.

For the vaccinated worker, concerns surrounding occupational health and safety, while working in close proximity to unvaccinated workers is an important consideration.

For the unvaccinated worker, several concerns with the vaccines, the need for more information, and the requirement for regular COVID-19 testing are important considerations.

The World Health Organization, on its website states:

“Most people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment.”

Additionally, COVID-19 has exposed work-from-home opportunities for some professions.

In the same vein, Caribbean countries such as Barbados have not indicated that they will take positions considered to be hardline on vaccination in relation to employment.

For instance, the Government Information Service (GIS) in Barbados reported in late April, 2021 the Ministry of Labour’s statement on vaccination in the workplace:

Presently, in Barbados, it is not mandatory for an employee to take the vaccine. The employee determines whether he/she wants to be vaccinated and is not to be treated unfairly nor discriminated against by the employer, if he/she chooses not to take the vaccine.”

The rights and responsibilities of employers and employees continue to apply in the context of the COVID-19 pandemic and all existing contracts of employment also remain in force and must be respected.

Governments, however, are pushing for herd immunity so that economies can get back to a pre-COVID-19 normal.

One of the fiercest pushes for Covid-19 vaccination towards herd immunity in the Caribbean has come from Antigua and Barbuda’s prime minister Gaston Browne, who warned his citizens about the possibility of mandatory vaccination if herd immunity is not achieved in a set timeframe.

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