Covid-19 Policies: Mandatory Vaccination & Testing

The COVID-19 pandemic continues to pose major risks to our health, economy, businesses and livelihoods. All, however, is not doom and gloom. COVID-19 vaccines, and the increasing evidence of their efficacy, give us reason to be optimistic. Yet, the reluctance of some to be vaccinated poses a challenge. Unsurprisingly, the question of whether employers can lawfully make it mandatory for their employees to be vaccinated has become a topic of hot debate in Barbados. This has also provoked further questions about the extent to which the mandatory COVID-19 testing of employees is permissible.

Much of the debate over whether employers can require their employees to be tested or vaccinated has been focused on the Employment (Prevention of Discrimination) Act, which has recently been brought into force. Whilst there is no doubt that this Act provides relevant guidance on these questions, some of the discussion concerning the implications of this Act has been less than fully informed. It has also tended to ignore the important duties that are imposed on employers under the Safety and Health at Work Act. In this article, we hope to clarify the relevance of both Acts to the issues of mandatory COVID-19 testing and vaccination, and to provide general guidance on how employers in Barbados can manage these issues in a practical manner.

Mandatory Testing

The Employment (Prevention of Discrimination) Act makes certain grounds of discrimination against an employee unlawful, one of which is a person’s medical condition. In doing so an employer is prohibited from requiring a person to answer questions about or get tested for a medical condition in order to be employed or to keep their existing job. However, exceptions can be made where such measures are necessary in order to determine whether an employee meets a qualification that is “an inherent requirement” of their job.

Some intrusion into matters of employee health is therefore permissible in certain cases. An obvious example is an airline pilot. Not having a visual impairment is an inherent requirement of a pilot’s particular position, and therefore requiring a pilot to answer relevant questions, and to undergo an eye-test, would not be unlawful.

Being COVID-19 positive is clearly a medical condition. Accordingly, an employer can only require an employee (or a prospective employee) to answer questions in relation to, or to undergo tests for, COVID-19 if those measures are required to determine whether that person satisfies a qualification that is an absolute necessity of their position.

Unfortunately, as the Employment (Prevention of Discrimination) Act has only recently been brought into force we are not yet aware of any local guidance as to how the concept of a qualification which is “an inherent requirement of a particular position” will be applied. However, looking to other jurisdictions, we find cases where not only the performance of a job is to be considered, but also a requirement for that job to be carried out with reasonable safety to the employee and to others with whom they will come in contact in the course of their employment.

Applying such guidance, there will be situations in which an employer can require an employee to answer questions in relation to, or to undergo tests for, COVID-19 if this is required for them to perform their job with reasonable safety to themself and to others with whom they will come in contact in the course of their employment. This is a matter of judgement and will depend on the facts of each case. However, it is likely that an employer can justify requiring employees to answer questions in relation to, or to undergo tests for, COVID-19 to the extent that their jobs involve substantial close contact with other persons such as customers, especially where some are elderly or vulnerable. This is likely to be the case for many workers in the health care and hospitality industries.

Mandatory Vaccination

The situation in relation to mandating vaccination against COVID-19 is different in several ways. The status of being vaccinated or non-vaccinated is not a medical condition as that term is defined in the Employment (Prevention of Discrimination) Act. As such, the Act does not restrict an employers’ ability to require a person to answer questions about their vaccination status, nor does it include a person’s vaccination status as a ground of prohibited discrimination. This means that, at the stage of hiring new employees, an employer is free to (1) ask an applicant to answer questions and provide evidence as to their vaccination status, and (2) choose not to offer employment to a prospective employee who is either unwilling to provide evidence of their vaccination status or is unvaccinated.

In terms of existing employees, the situation is not as straightforward. While an employer is free to ask employees to answer questions and provide evidence as to their vaccination status, the question of what action an employer can take if an employee chooses not to respond to this request (or says that they are not prepared to be vaccinated) is one which requires careful consideration in its specific context. This will include examining the nature of the employer’s business, the nature of the particular employee’s role, the terms of the employment contract and the availability of alternative options to mitigate COVID-19 risks. The employer is required to balance a number of matters and there is no single, one size fits all, answer to this very important question.

In conducting this balancing exercise, employers must be aware of the legal duties imposed on them under the Safety and Health at Work Act. Amongst other things, this Act imposes a duty on employers to ensure, as far as reasonably possible, the health, safety and welfare at work of both their employees and persons not in their employment that may be affected by the conduct of their business. In the context of the pandemic, this duty no doubt extends to implementing COVID-19 policies. As such, each employer must make a careful and balanced judgement as to what combination of measures they should use to appropriately manage COVID-19 risks to the health, safety and welfare of their particular business.

In exercising their judgment, employers should consider the risks that each employee, if unvaccinated, might pose. These risks will likely vary from industry to industry, and even between jobs within the same business. They should also identify any best practices that have gained acceptance generally within their industry and adopt measures that are consistent with those practices.

Within certain industries, and for certain jobs, best practice may include implementing an appropriate mandated testing policy for employees, particularly for those who are not vaccinated. In others, best practice might justify a mandatory vaccination policy despite such a policy being significantly more intrusive. However, if the risks can be sufficiently mitigated by a combination of one or more of education and persuasion, testing, social distancing, requiring face masks, sanitisation or remote work, the imposition of a mandatory vaccination policy will be difficult to legally justify.

Where alternative measures are genuinely inadequate to manage the risks, an employer may consider mandatory vaccination. However, in doing so, they will have to exercise careful judgement including considering which particular employees need to be vaccinated, examining the terms of each of those employees’ contracts of employment, and implementing the proposed policy in a fair manner. Early notice about any proposed policy and an opportunity for concerns to be heard in a private and confidential manner is key. Employees should be given the opportunity to raise medical, religious or other objections.

Where an employee has a genuine reason (e.g. on medical or religious grounds) for refusing to be vaccinated, the employer should tread very carefully. Where any such objection is raised, employers ought to consider granting an exemption and instituting alternative measures, such as reassigning the employee to a position where there is lower risk. Regardless of the circumstances, employers should address all concerns in a reasonable and respectful manner.

Adopt a Strategic Approach

No employer wants to lose or demotivate a good employee. Nor does an employer want to get embroiled in industrial relations or legal disputes unnecessarily. For these reasons, it would be strategic for most employers to focus on education and encouragement before considering whether it may be necessary to roll out a policy of mandatory vaccinations.

Executives and other leaders within a business should lead by example and demonstrate their own commitment by getting vaccinated as early as possible. They should also identify and encourage influencers at every level of the business who may be better positioned to educate their peers on the benefits of vaccinations. Employers should make it as easy and painless as possible for employees to get vaccinated. This might include scheduling appointments and arranging transportation. Employers should consider paying sufficient compensation for the time taken away from work (both for the actual vaccination and recovery).

Ultimately, whether an employer should, and can, introduce policies that mandate COVID-19 testing or vaccinations will depend on a number of factors. Any employer who seeks to roll out a policy without carefully examining the terms of its employees’ contracts, and considering the risks, alternatives and individual employee concerns, will almost certainly fail to justify that decision to their staff, a tribunal, or a court of law if and when that policy is challenged.

Please note, this article seeks to provide general information and does NOT constitute legal advice. If you require legal assistance, then we recommend that you consult with a suitably qualified Attorney.

This Guide for Employers has been prepared by:

Ben Norris
Hamel-Smith Caribbean
ben@caribbeanlaw.com

Paul Hamel-Smith
Hamel-Smith Caribbean
paul@caribbeanlaw.com