Editorial | Let’s test vaccine mandates

Prime Minister Andrew Holness has all but conceded that his government has no power to mandate that Jamaicans, even those working in forward-facing state-paid jobs, be vaccinated against COVID-19. So his administration hopes to persuade people to take the jab.

“I want to assure the country that the Government is not thinking about and is not inclined to mandate any vaccine,” Mr Holness said last week. “In fact, we don’t believe that it is something that would meet the constitutional test. There is no need for any social disruption in that regard.”

Indeed, moral suasion, people being convinced by the logic of the argument and their acceptance of government by consent, is in line with the best traditions of democracy, which this newspaper fundamentally supports. But even in democratic society, there are sometimes exceptions. On occasion, governments are forced to act in the interest of the larger good.

Which is why some people might question whether Prime Minister Holness, chastened by his personal and his Government’s defeats in a spate of constitutional challenges, acted prematurely, thereby creating a moral hazard that deprives the State of the option of a potentially useful tool should its use become necessary in battling the pandemic.

Jamaica is in the midst of a so-called third wave of the coronavirus. During the first 12 days of August, the country recorded 3,472 new COVID-19 cases, 401, or 13 per cent, more than for all of July. Over the same 12-day period, 80 people died from the virus compared to 131 in June and 116 in July. The 544 new cases of COVID-19 confirmed on August 12 were a new record for a single day, outstripping the previous high of 384 of April 10 during the virus’ second wave. This new aggressive phase of the coronavirus is taking place even though there is no confirmation of the presence in Jamaica of the more contagious Delta variant, which is said to account for more than 80 per cent of new cases in North America and Europe.

STRONG POCKETS OF RESISTANCE

Compounding Jamaica’s problems are the strong pockets of resistance to the vaccine, pushed on social media by people of varied stripes, from hesitant sceptics, concerned about the speed with which the new drugs were developed, to conspiracy theorists, domestic and foreign, who claim that the vaccines are part of a plot to exterminate certain racial groups. Among the purveyors of these spurious arguments are popular entertainers.

This is a potentially serious problem in a country where the number of people who have received at least a single dose of a vaccine (Jamaica has, so far, administered the AstraZeneca vaccine, of which two doses are recommended for full vaccination) remains in the low double digits. The Government has set an inoculation target of at least 65 per cent of the population as its standard for herd immunity. More immediately, though, vaccine hesitancy, coupled with weak enforcement of wearing of masks and physical distancing, could imperil the administration’s intention to create a relatively safe environment for a return to face-to-face, classroom teaching at the start of the new school year in September.

This is an issue with which governments, in the Caribbean and elsewhere, have grappled. In St Vincent and the Grenadines, the government, despite opposition demonstrations (including one where Prime Minister Ralph Gonsalves was injured) passed legislation giving the Government the authority to require the vaccination of key public-sector employees, if it feels it necessary. In Antigua and Barbuda, protests over the government’s requirement that employees be vaccinated or face fortnightly COVID-19 tests ignited demonstrations and clashes between police and protesters. Barbados, too, has had demonstrations against a similar proposal.

But it is not everywhere that workers groups, especially teachers’ unions, have baulked at the vaccination mandates. In liberal America, where individual rights tend to be fiercely defended and approaches to fighting COVID-19 are coloured by politics, the country’s biggest teachers’ unions have backed vaccines mandates for their members, notably being imposed in the states of California and Hawaii and the city of Denver, Colorado.

By October, in California, 63 per cent of whose educators are at least partially vaccinated, teachers in public and private schools will have to be vaccinated. The requirement will affect approximately 800,000 employees. A similar mandate applies to the state’s health workers. In Hawaii, all state and county workers, including teachers, will have to provide their vaccination status or face weekly tests. A similar requirement will come into force in Denver at the end of September.

“We believe that such vaccination requirements and accommodations are an appropriate, responsible, and necessary step,” said Becky Pringle, the president of the National Education Association, which represents three million teachers across the United States. Randi Weingarten, president of the American Federation of Teachers, has also strongly supported the mandate.

The shift by these groups to embracing vaccination mandates tracks the rampage of the Delta variant, concern that COVID-19 is now the epidemic of the unvaccinated, and fear of the mutated virus spreading among teachers, students, and school-support staff.

SERIOUS DEBATE

In Jamaica, the question is whether a vaccine mandate would, similar to a ruling by the Supreme Court on the first national identification systems (NIDS) law, be deemed to impinge on individual rights and freedoms guaranteed by Jamaica’s Constitution. The matter hasn’t been tested. It probably should be. At least the issue deserves serious debate.

While Section 13 (2)(b) of the Constitution constrains Parliament from passing laws and organs of the State from taking action “which abrogates, abridges, or infringes” guaranteed rights, the charter makes it possible for abridgements in circumstances “as may be demonstrably justified in a free and democratic society”.

The issue, on the face of it, is whether demanding that workers in critical areas be vaccinated could be considered reasonably justifiable action to protect the society from a public-health risk that could overwhelm the society and whether such a requirement would be repugnant to the idea of equality before the law. This, it seems, also raises pertinent questions about the long-standing mandate that children be vaccinated before entering school, the constitutionality of which has never been questioned or tested. There are also broader questions to be resolved about private employee/employer rights with respect to demanding vaccinations.

It is time for a full conversation and, perhaps, asking questions of the courts on these matters.