#BTColumn – Employers should not force vaccines

Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today Inc.

by Ashleigh-Ann Dussard

Recently a prominent Queen’s Counsel informed the public via the radio talk show ‘Down to Brasstacks’ that employers could dismiss employees who have not been vaccinated or who refuse to take the vaccine. He further stated that even in cases where they have not taken the vaccine for medical reasons, a dismissal would be lawful.

However, this lone wolf comment has proven to be unpopular since there is a host of local and international, professional and legal advice that indicate otherwise.

Rather employers are minded not to make the vaccine mandatory for their workplace for several reasons.

(1) An employer makes himself open to liability in the event that his employee becomes severely ill as a result of the vaccine that he has made mandatory.

With the development of recent and modern COVID-19 vaccines many persons have developed complications, some being severe, in response to taking vaccines.

According to the World Health Organisation these complications include fatigue, blood clots, fever, headaches, diarrhea, and periods of pain and suffering.

In even rarer cases, some persons have developed complications, which have led to their death. The vaccines are seen as a way to limit the adverse effects that COVID-19 may have on the body. They are neither a cure nor an impenetrable force field for the virus.

To mandate that an employee subjects himself to any of these side effects, especially where the Government has made no such requirement, is beyond the scope of control that an employer has over the members of his workforce. In the event that an employer makes the vaccine mandatory and an employee experiences severe side effects, the door is wide open for liability issues.

(2) The autonomy of the person/patient

In the Commonwealth Caribbean, access to COVID-19 vaccines has been limited, with Governments on a constant quest to secure more for the region’s populations. Therefore, the average citizen that is willing and able to be vaccinated is not at liberty to pick, choose and refuse the brand of COVID-19 vaccine that will be administered.

Like other medical procedures, taking a vaccine is a personal choice as the individual will make the decision to consent to the likely side effects in order to better protect himself from the threat of the virus.

In other countries, such as Australia, United Kingdom and Canada persons are required to sign a vaccine consent form before taking the vaccine. Informed consent is an essential part of patient autonomy, which is the right of competent adults to make voluntary decisions following adequate disclosure of the relevant medical information.

Patient autonomy is seen in the Patient’s Charter of Rights posted on the website of the Queen Elizabeth Hospital (QEH), as it states that “A patient is entitled to… make decisions about the plan of care prior to and during the course of treatment.”

Therefore, in the absence of laws which make COVID-19 vaccines mandatory, an employer cannot impose such a request as it is a blatant disregard for a patient’s autonomy to choose and make decisions about his own medical care.

(3) Does a vaccine remove the inherent risk of COVID-19 in the workplace?

One may deduce that the Q.C. in his comments is insinuating that taking the vaccine makes the workplace safer for other employees. The reliance would be on the Safety and Health at Work Act (SHAW Act) which states that every place where persons are required to work must be made and kept safe for any person working there.

As stated in this article while the vaccine decreases the chance of severe effects of COVID-19 on the individual, it does not remove all risks associated with the virus. The risk still remains that an individual, whether vaccinated are not, may contract COVID-19 in the workplace or in public when interacting with other people.

Additionally, the risk shall also remain that an employee may contract the virus when interacting with unvaccinated, infected customers.

(4) Opens the floodgates for a myriad of wrongful dismissal cases

If an employer were to act on the advice to dismiss unvaccinated employees, he would be opening the floodgates to potential wrongful dismissal lawsuits.

A clause to be vaccinated against COVID-19 is not in any initial employment contracts. Currently, it would be too far a stretch to include a blanket provision to make sure that everyone in the workplace is vaccinated.

Perhaps the argument can be made that any future employment contracts being signed may include a vaccination clause where it is absolutely necessary for the nature and course of that employment.

Call to action

As a member of the Barbadian society that yearns to see the country overcome the threat of COVID-19, I hope that

• The Q.C. qualifies, clarifies and rectifies his statement,

• Other employment experts, lawyers or organisations offer their advice to the public

• The public is guided by the comments of the Minister of Labour and Social Partnership Relations, Colin Jordan, and other attorneys that advise on the matter, and that

• Those with influential status will refrain from giving partial and/or misleading advice.

Ashleigh-Ann Dussard, LLB, LLM is an alumna of the University of the West Indies, Cave Hill Campus, and past president of the Cave Hill Law Society.