#BTColumn – Dear HR, Vacation, COVID-19 testing rights and… what about my hamper?

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

Question:

My workplace is stating that in order for me to be eligible for three weeks’ vacation this year, I would need to have accrued 208 days up to my anniversary date. I have accrued 206 days and they are asking me to sign a form stating I am not eligible for vacation.

This would mean that I would get no vacation and my days will start over counting from my anniversary date. Can they do this?

Under the provisions of the Holidays with Pay Act (2017-3) your employer can indeed grant you vacation leave even though you have not met the 208 days as stipulated.

The legislation states that an employee who completes a year of employment with the same employer is entitled to an annual holiday of a minimum of three (3) weeks. A “year of employment” is defined as any period of 12 months during which the employee has performed labour or rendered services for the same employer for an aggregate of at least 208 days, in the case of employees employed on a weekly, fortnightly, monthly or yearly basis, and at least 150 days, in the case of any other employees.

The Act also makes provision that you and your employer may agree that all or part of your annual holiday entitlement may be taken before you become entitled. If there is agreement that you take all or part of the annual holiday before you are entitled, you will not be entitled to annual holiday again until another 12 months (which is the requirement for entitlement for the annual holiday) has passed.

In the interest of good and fair employment practice, the fact that you are two days shy of the entitlement should be taken into consideration and the vacation given on a prorated basis. When the arithmetical calculation to determine the number of vacation days due is applied, at 206 days, the difference in the number due to you would be negligible.

To grant employees vacation leave, which they have accrued as opposed to the approach being taken at your workplace, is a small price to pay in exchange for the goodwill, increased morale and culture of workplace partnership that can be cultivated.

Question:
Workers who aren’t vaccinated are now being asked to be tested weekly and bring in the relevant documentation (a negative test result) every week. However, staff who are fully vaccinated have also tested positive, and no one notified the people who were around them to be tested.

Furthermore, they have stated that the vaccinated do not have to be tested. If, in the last week, the virus affected the vaccinated employees, why is it that going forward not all persons have to be tested?

The issues of COVID-19 vaccinations and testing continue to engage HR Practitioners across the island. This disease has given rise to workplace issues that are novel, complex and which were certainly never contemplated.

With the possibility of new COVID-19 variants finding their way into our population, with the decreased efficacy of vaccinations as time elapses and with increased levels of hesitancy being reported, employers have a responsibility to ensure all employees, both the vaccinated and the unvaccinated, are protected in the workplace. Since both vaccinated and unvaccinated employees are capable of contracting and transmitting the disease, if a policy of regular testing is introduced, all employees should be tested.

The main challenge is that there is no legislation to which anyone can refer for guidance regarding regular testing or vaccinations. In the absence of a law to which one can turn or a precedent in the courts (a decision made prior by the court) which mandates what should and should not obtain, each workplace is able to put and is putting its own policies in place in keeping with the perspectives and objectives of the owners or management.

Many workplaces are designing and implementing their own vaccination and testing policies, leaving employees who may disagree with the measures to resort to the law courts or to the Employment Rights Tribunal for a decision on whether their rights have been breached. This is their only available option. For employees with limited resources, this is certainly not a viable option and can have serious consequences for their lives and their livelihoods.

Many unforeseen challenges have emerged as employers and employees navigate this constantly changing environment. In times like these, trust and meaningful dialogue between these social partners are essential. Employees draw conclusions about their working environment as they observe and discuss how policies are introduced and implemented. The conclusions they draw then permeate workplace relationships, dynamics and culture.

Question:
Hampers, which are usually given to staff at Christmas for their hard work, are now being given only to the vaccinated. Is this not discriminatory?

Since gifts by an employer are discretionary and not a contractual right, the practice cannot be deemed discriminatory.

Under the heading of Prevention of Discrimination in Employment, the Employment (Prevention of Discrimination) Act, 2020 provides that an employer shall not discriminate against an employee as it relates to: – terms or conditions of employment that the employer affords the employee; – the provision of facilities or services related to or connected with employment; – the denial or restriction of access to opportunities for promotion, transfer or training or to any other benefits associated with employment; – disciplinary action or dismissal; or – by subjection to any other detriment.

However, transparency is a necessary ingredient in good employment relations practices and in fostering a positive organizational culture.
In the interest of openness and transparency, any changes to the criteria for the distribution of gifts should be communicated.
About Lifeline Labour Solutions Lifeline Labour Solutions is a boutique partnership providing labour management solutions to workplace challenges.

Partners Carol-ann Jordan and Jacqueline Belgrave have established practitioners with a wealth of knowledge and experience in Employment Relations and Human Resource Management.