Conrad George and André Sheckleford | Misguided discourse on vaccinations in the workplace

The country remains in the midst of the COVID-19 pandemic, and with Jamaica having the lowest vaccination rate in the region, save for Haiti, Jamaicans are more vulnerable than most to the new Delta variant of the virus.

The epidemiologists tell us that danger will not abate until most Jamaicans are vaccinated, and that vaccinated people are far less likely to contract the virus, and infect others, than the unvaccinated are.

This has led to a burgeoning debate about vaccination in the workplace. Can an employer mandate compulsory vaccination? So far, much of the debate has surrounded principles of limited relevance. Statements have recently been made in the press about the importance of the approach taken by the International Labour Organisation, ILO; there have also been misguided statements to the effect that there being no law on the subject it means employers can mandate vaccination.

The approach of the ILO does not determine Jamaican law, and there is law on the subject.

Jamaican employment law is, for the most part, not made up of rigid rules, but of principles. There are established principles that apply to the question of whether an employer can mandate vaccination in the workplace. It is perhaps worth noting that Jamaican (and the Commonwealth Caribbean) employees enjoy substantially more protection than their US counterparts, and as such it is inadvisable to look to our northern neighbours for best practices.

In essence, every employer owes a duty to each employee to provide a safe system of work, and similar duties of care to customers and members of the public. An employer who fails to discharge any of these can be sued by one who suffers loss as a result.

Each employee has a duty not unreasonably to increase the employer’s risk of incurring liability. Failure to comply with this duty may be a breach of the employee’s contract. An employer can dismiss an employee for breach if it is justifiable in all the circumstances.

Now for a little more detail.

Legal duties owed

Every employer owes to each employee a legal duty to provide a safe system of work in keeping with current standards of best practice. Each employer also owes a duty of care to customers and members of the public. This means that every employer has a duty to do all that is reasonably necessary and practical to protect other workers, customers, and members of the public from risk of injury or harm.

These duties are enforceable against the employer, who can be sued if a worker, customer or member of the public is injured or harmed as a result of the employer failing to discharge any of these duties.

It follows that if an employer fails to take adequate measures in the workplace to limit the risk of COVID-19 transmission, he can be sued by an employee, customer or other member of the public who can establish that he caught COVID-19, and suffered injury, as a result of the employer’s failure to discharge that duty of care.

The law also implies in every contract of employment, a duty, on the part of every employee, of good faith and fidelity to the employer.

This duty requires, among other things, the employee to do nothing unreasonable that would cause the employer to incur legal liability to another.

There may be particular circumstances in which it may be unreasonable for an employee to refuse to be vaccinated. If this is likely to increase the employer’s risk of being liable for injury or loss suffered by another, it could amount to a breach of the employee’s duty of good faith and fidelity to the employer, and therefore a breach of such employee’s contract of employment.

The consequences

Consequences may flow from this, but it is of vital importance that all parties realise that there can be no universal rule that applies to all employers and all employees regarding this issue. All relevant circumstances of each individual case, and all feasible alternatives to vaccination must be considered before there can be any move to take any disciplinary action against the employee.

Employers must carefully consider whether it is reasonable to require their employees, or different classes of employees, to be vaccinated. Such considerations may, in many cases, call for consultation with workers to explore the various options.

On the question of disciplinary action, in brief, it is our law that even if an employee is in breach of his contract, the employer cannot dismiss him unless the dismissal is justifiable. Our courts have decided that ‘justifiable’ means fair or reasonable, in all the circumstances.

This means, in straightforward terms, that:

a) All the circumstances of every particular case must be considered and weighed before any decision to dismiss can properly be made; and

b) Any such dismissal will be judged (if the matter goes to the Industrial Disputes Tribunal) upon whether it was reasonable in all the circumstances.

Hence, the likely importance of consultation.

These principles apply to all disputes between an employer and an employee, and therefore to any situation in which an employer wishes an employee to be vaccinated, the employee refuses, and the employer takes disciplinary action.

No absolutes

So, there is no blanket bar on mandating vaccination in the workplace; equally, there is no blanket entitlement on the part of the employer to mandate vaccination. Each case must be considered having regard to all the relevant circumstances.

As was set out previously in our article ‘Dismissing Employees who Refuse to be Vaccinated’, published in The Sunday Gleaner on April 18, 2021, one size does not fit all.

The considerations that may apply to an employee of a medical establishment or hospitality business may not apply to an agricultural worker who interacts with no other employees, customers, or members of the public. There may also be different considerations applicable to an employee who can competently perform his/her tasks by working from home, and one who cannot.

Employers who mandate vaccination regardless of circumstances, and without consultation, may be successful in forcing their employees to be vaccinated. If they are, that will be the end of the story so far as their employees are concerned. But if there is resistance, and they end up dismissing employees without having applied the law, there may be tribunal awards against them, which may include reinstatement and back pay.

We suggest that employers who are crafting vaccination policies take a measured approach, considering the nature of their business and various types of employees, rather than taking a ‘one size fits all’ or a ham-fisted approach.

Conrad George is a partner and commercial litigation and employment law practitioner at the law firm Hart Muirhead Fatta. Andre Sheckleford is an associate and commercial litigation and employment law practitioner at Hart Muirhead Fatta. Email feedback to: cegeorge@hmf.com.jm