WHETHER an employer, or even the Government, can require people to take the COVID-19 vaccines currently being made available is a question on the minds of many Jamaicans today.

All responses to the coronavirus outbreak concern a balancing of two critical objectives — on one hand is the need to respond effectively to the public health crisis spurred by the viral outbreak and on the other hand is the importance of preserving the personal liberties and the fundamental rights of each citizen.

In large part, the question of whether you can be required to take the vaccine may just depend on the special circumstances that you are in. It is important to address these questions in light of the nuances that may be involved in a given scenario.

An employer, generally, has the right to establish workplace policies which set health and safety standards for employees. Arguably, this general right extends to the implementation of an ’employee vaccination policy’ which, in broad terms, may require employees to take the vaccine when it becomes available to them.

The critical question here is whether the employer can take disciplinary action against an employee who refuses to take the vaccine. An employer faces the risk of being brought before the Industrial Disputes Tribunal (“the IDT”) by an employee who is aggrieved by disciplinary action taken as a consequence of their refusal. Even if the employer does not take disciplinary action but merely requires the employee to take the vaccine as a condition for return to work, they may be exposed to a claim of constructive dismissal.

Much like the coronavirus itself, these types of disputes would be quite novel. It is, therefore, difficult to predict how the IDT would treat with them. As a general matter however, an employer stands a greater chance of success in these cases if it can be shown that the policy is reasonable when viewed in light of specific work arrangements, and that the employee’s refusal was unreasonable.

The employer should assess whether the nature of the business involves such inherent risk of exposure to justify a workplace mandate. Employers in the hospitality and tourism industry, whose businesses are operated from airports and seaports and who are involved in public transportation, may have very strong bases to argue for the necessity of such a policy. The policy should also make accommodation for reasonable objections by the employee who refuses to take the vaccine. A policy which imposes a blanket requirement on staff is unlikely to be deemed reasonable when enforced against an employee who has a good basis for refusing. An employee may reasonably refuse the vaccine if prohibited by religion or on the advice of a doctor. It is difficult to create an exhaustive list of potentially reasonable grounds for refusing the vaccine, however it is important to note that many of the reasons advanced in the public domain, which include conspiracy theories, are not likely to be deemed reasonable grounds for refusal.

The risk an employer faces from implementing such a policy is not limited to industrial disputes before the IDT. Much like the Government, an employer could be faced with a claim for breaches of the individual’s constitutional rights guaranteed under the Charter of Fundamental Rights and Freedoms (“the Charter”). The Charter provides that all persons are under a responsibility to respect and uphold the rights of others. It goes further to say that its provisions are binding on juristic persons if, and to the extent that, it is applicable. The Supreme Court of Jamaica has held that employers/companies are required to uphold the constitutional rights of their employees provided that this right is capable of being enforced against it as a private entity.

Among the rights guaranteed in the Charter are freedom of thought, conscience and belief; freedom of expression; freedom from discrimination on the grounds of religion; and privacy. It is likely that a vaccine mandate, whether imposed by the State or by an employer, will potentially infringe these or other rights guaranteed under the Charter. However, the mandate is not unlawful merely because it limits the exercise of a Charter right. It only becomes unlawful when that limitation cannot be said to be demonstrably justifiable in a free and democratic society.

To pass this standard the party imposing the mandate must show that there is a pressing and substantial objective to be met, that the mandate was carefully designed to address this objective and is not arbitrary or irrational, that the mandate limits the right as little as is necessary to meet the objective, and that the measures are not more severe than necessary.

Whether the employer, or the Government, can pass this test will turn on how thoughtfully the policy was designed. A policy which is limited to individuals in a vulnerable age group or those with co-morbidities that put them at risk of serious infection or death, and makes exceptions for reasonable objections, is likely to be deemed far more justifiable than a blanket command. Likewise, for the Government’s part, a mandate that is enforced by criminal sanctions such as fines or imprisonment is likely to be viewed more harshly than a mandate enforced by withholding public services to those who cannot prove vaccination (e.g., restrictions on accessing public transportation). Another critical factor is whether suitable, less restrictive alternatives exist. Employers would do well to explore work-from-home arrangements and other measures before moving to implement vaccination policies. It is unlikely that such a policy would be deemed justifiable if it is shown that suitable alternatives exist.

A mandatory vaccination policy may, in the final analysis, be more trouble than it is worth, particularly considering that a well-designed policy would cater for reasonable objections and that there are many persons in Jamaica who may claim reasonable bases for objection. It is likely that individuals will more willingly comply with requests to vaccinate made by their employers and even the Government after they are provided with all relevant information and access to health care professionals who can assist in guiding their decision-making. However, if you have determined that the circumstances of your work environment are such that a mandatory policy is necessary to ensure the health and safety of your employees and customers, it is advised that you secure legal advice in the drafting, implementation, and enforcement of that policy.

Matthew Royal is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Matthew may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.