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#BTColumn – Safe, but for whom?

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by Garth Patterson Q.C.

The Government’s stated objectives in establishing safe zones are well understood. It is, unquestionably, imperative that we achieve a critical mass of fully vaccinated people, roughly 90 per cent of the population, according to recent estimates, to restore the health and vitality of our people and economy.

To do so, we must convert most of our population of currently unvaccinated persons to the ranks of the vaccinated.

The establishment of “safe zones” in the health sector is an important step in that process. But the Emergency Management (COVID-19) (Safe Zones) Directive, 2021, which came into effect on November 8, 2021, and is aimed at designating all health service institutions (hospitals, nursing homes, polyclinics, and private medical and dental clinics) as safe zones, has almost completely missed the mark.

The Directive seems to have been deliberately crafted to avoid, at all costs, implementing any form of vaccine mandate, which is the most obvious, most direct, method of creating a so-called “safe zone”.

The safety of persons entering or working in the safe zone is best assured by requiring everyone to provide proof of vaccination (sometimes euphemistically called “vaccine passports”). I mistakenly assumed, when the Government first announced this initiative, that that is what it had in mind. But it appears that nothing could be further from the truth.

The Directive does not mandate vaccinations at all. Instead, it imposes very intrusive and costly periodic testing requirements for all employees working in a health service institution, whether vaccinated or not, and creates offences carrying the penalty of imprisonment or hefty fines on health care employees who fail to get tested and on health care institutions that fail to ensure that their employees are tested.

It imposes no vaccination or testing requirements for patients attending the health care institutions; no vaccine mandates for unvaccinated health care workers; and no requirement for vaccination passports, which are successfully being implemented across the globe, for persons entering the safe zones.

In fact, the Directive, in its current form, has only served to ignite the ire of the medical profession, whose members are justifiably outraged at measures that are seemingly designed to punish the people making the most sacrifices on the front lines of this pandemic, by imposing unnecessary and costly testing requirements to appease a certain political constituency, namely the unvaccinated.

The medical and health care professionals who are vaccinated will in no way benefit from these mandatory testing requirements but will likely be the ones bearing the bulk of the financial burden of testing and will have significant exposure to the risk of criminal sanctions if they inadvertently allow an untested employee to attend work within a safe zone.

Vaccinated patients who attend these health service institutions will, similarly, not be any better off, since the greatest risk to their safety comes from unvaccinated persons, whether they are other patients or health care workers, who are free to enter and operate within the safe zones (subject to periodic testing, in the case of health care employees).

In effect, the Directive operates punitively against persons working in the health sector, while ignoring the unvaccinated recipients of health care services.
Presumably, the Government’s rationale for imposing these testing requirements on employees was, in part, motivated by the desire to indirectly coerce unvaccinated employees to get vaccinated.

However, unvaccinated employees within the safe zones will not, in any meaningful way, be incentivized by the Directive to get vaccinated, since the requirement to be tested will still apply even if they are vaccinated.

The only consequence of not getting vaccinated is that an unvaccinated employee must test more frequently than his vaccinated counterpart. That is unlikely to produce a sufficient inducement for unvaccinated employees to get vaccinated.

From the reaction of members of the medical profession, who have called for the suspension of the Directive, they feel victimised by the Directive, and justifiably so.
The regime of testing that it imposes will significantly increase the administrative bureaucracy and costs of providing critical health care. Importantly, the Directive is deafeningly and unhelpfully silent on the question of the funding of these tests – whether it is the employee or the health service institution that must bear the costs of this periodic testing.

Employees might reasonably argue that the requirement for them to incur this cost is not covered by their contract of employment and that it should, therefore, be absorbed by the health service institution as a reasonable cost of doing business. How is that fair to those owners or operators of health service institutions who are doing all they can to ensure that they and the people they employ are vaccinated? Moreover, concerns have been raised that the mechanics of the Directive collide with provisions of existing labour and health and safety legislation.

While many of those concerns lack any real legal substance, the confusion could have been avoided by more precise drafting that leaves no doubt or ambiguities regarding the operation of its provisions in relation to existing laws or contractual provisions.
Also, uncertainty exists regarding the liability of a health service institution for excluding an employee from the workplace for not being tested. Is it still obliged to pay the salary of the employee; and can the employee sue for wrongful dismissal? The short answer is that an employer will not usually be liable for breach of contract for complying with the law.

However, to the extent that the relationship between employers and their employees is adversely impacted by the Directive, the Government should have ensured that the provisions of the Directive were expressed to override any conflicting provisions of the relevant employment contracts.

The fallout from the implementation of the Directive has, predictably, been swift and pervasive. By insisting on a regime of testing as an indirect means of “encouraging” employees to get vaccinated, the Government is seemingly contorting itself to avoid doing the obvious right thing.

It has decided that there will be no vaccine mandates, whether directly or indirectly, and is sticking to that position regardless of the human or social costs. The right of the unvaccinated to remain unvaccinated and, by extension, to continue to pose a serious public health risk and a human resource and financial drain on the Barbados population and economy appears, from the

Government’s perspective, to be paramount and must be protected at all costs.
But what of the rights of the vaccinated? Those civicminded, public health-compliant, socially and medically responsible, members of society who have made the sacrifice of being vaccinated for their own good and for the good of the wider society.

What of the rights of the front-line medical and health care professionals and workers who have followed the science and taken vaccines? Do those rights count for nothing? In creating the health service institution safe zone, was consideration being given to their safety and well-being? To his credit, the Minister of Health has been responsive to the concerns raised about the Directive and has reportedly agreed to put it on hold while the problems identified are being reviewed.

He will likely face insurmountable challenges in trying to fashion a solution that addresses the competing concerns of all the stakeholders while achieving the public health imperatives. The resolution lies in addressing the issue of vaccination head-on and learning from the experiences of other countries where mandatory vaccination programmes, in one form or the other, have been successfully implemented.

In my humble opinion, this unsafe zone Directive should be scrapped and replaced with legislation that unequivocally requires all persons (including patients) who enter the safe zone (with appropriate medical and religious exemptions and exceptions in life threatening emergencies) to produce proof of vaccination. Period.

Anything less might comfortably be dismissed as mere political appeasement, the object of which is, predominantly, to ensure the safety of votes. The Government must get it right and stop beating about the bush when it comes to mandating vaccines. There really is too much at stake.

Garth Patterson Q.C. is the Regional Managing Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St. Lucia in 1990 and 2011 respectively.

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