The debate about the rights of the employee to refuse to take the COVID-19 vaccination versus the right of an employer to ensure the workplace is safe raged on from last week into this week.
Prominent Queen’s Counsel Hal Gollop opened a can of worms when he declared that the employer has the right to dismiss a worker who refuses to take the vaccine.
Citing the Factories Act and the Safety and Health at Work Act, Gollop told VOB’s Down To Brasstacks that the employer is obliged to provide a safe working environment.
“Now, in the case of this pandemic, where a worker may decide he does not want to get vaccinated, we will have a situation where individual rights give way to group rights,” he declared. “That is, if someone does not want to get vaccinated, that is his business, but if the employer feels that that person’s decision not to get vaccinated may put the rest of his staff in jeopardy, he has to take the rights of the group (the rest of the staff) into consideration, as well as his obligation to provide a safe work environment.”
His comments were further compounded when the Barbados Hotel and Tourism Association stated at its annual general meeting last week that visitors were insisting that hotels and resorts have 100 per cent vaccinated staff at their facilities.
All this, while experts repeatedly caution that vaccination does not prevent you from getting the virus.
Then came the perfect case in point.
Celebrity Millennium was the first cruise ship in North America to restart sailing after more than a year. It set sail from Philipsburg, St Maarten, on a seven-night itinerary, with Barbados as its first port of call. The cruise boasted that 95 per cent of its crew and passengers were vaccinated. On Thursday, officials later reported that the liner had recorded two positive cases on board.
This development gave credit to the argument one lawyer put forward during the Brasstacks programme. He totally dispelled Gollop’s reasoning, saying that none of the COVID-19 vaccines have been finally approved by the US Food and Drug Administration (FDA). He also contended that because the vaccine does not guarantee that the vaccinated person will not get or spread the virus, the idea that the vaccinated person has some special edge on a worker who is not cannot strictly be proven.
Queen’s Counsel and MP Ralph Thorne also weighed in on his interpretation of the law in a Barbados TODAY Guest Column on Monday.
Thorne wrote: “While the court is ruminating on the issue of implied terms within the contract, it must also embrace the respective statutory rights and obligations of the employer and the employee, before making a final determination. In summary, I opine that this issue begins in common law contract, while necessarily embracing statute law and human rights considerations (with limited application) along the way.
“Ultimately, it seems to me that the methodological approach will be that of deciding what is reasonable in the circumstances of the employment. Therefore, as between a dental practice and an auto repair shop, I believe the result for the employee in each place of work would be different.”
In the US, a Texas hospital system’s mandatory COVID-19 vaccination policy for employees can stand after a federal judge dismissed a closely watched lawsuit from workers refusing to get the jab.
Houston Methodist Hospital suspended 178 workers for not getting vaccinated by a June 7 deadline. The hospital said the system is “to keep staff, patients, and their families safer”.
The 117 suing workers, including plaintiff Jennifer Bridges, a nurse for almost seven years at the hospital system, had their own choices to make, the judge said. Bridges and other plaintiffs had every right to accept or refuse the vaccine.
In an interview, Bridges told the media she was prepared to eat biscuits every day if it meant standing by her conviction.
And that is what is difficult for some to understand. Many unvaccinated people have the threat of loss of job, not travelling again, not socialising with certain friends and being slighted by some hanging over their heads. Yet they will not change their minds. And we have to respect that. Just as we respect those who choose to take the jab.
With emotions aside though, we must admit that sound arguments have come from both sides of the divide. The lawyers have offered their interpretations of the law.
However, here in Barbados, we are governed by the law, so that when the Minister of Labour Colin Jordan spoke, both employers and employees needed to listen.
The minister stated emphatically that employers “cannot dismiss workers for not taking the vaccine” since there was no such law in Barbados.
The labour minister said: “Barbados has not made the taking of a COVID-19 vaccine mandatory and so there is no legislation that requires a worker to be vaccinated. Employers in Barbados cannot simply dismiss workers for not taking the COVID-19 vaccination.”
He went out to cite the Employment (Prevention of Discrimination) Act.
“Workers in Barbados are protected by the Employment (Prevention of Discrimination) Act, which, among other things, prohibits discrimination on the grounds of a person’s medical condition,” he said. “Additionally, employers are prohibited from requiring a person to be tested for a medical condition either as a precondition for entering into a contract of employment or as a condition for continuing employment. This prohibition is subject to if the test or knowledge of a medical condition is required because of what is called a genuine occupational qualification.”
We expect the debate will continue but we hope that people will be respectful of each other’s stance on the matter. No one group should feel pressured or slighted by the other.
To date, science still states that sanitising and wearing masks are the most effective ways to fight the COVID battle. The science also suggests that vaccines are effective in preventing severe illness, hospitalization and death from a virus that has killed scores of Barbadians. Let us fight COVID, not each other.