As the novel coronavirus pandemic persists, private sector organisations have drafted a protocol advisory for businesses coronavirus disease containment measures in the workplace.

Speaking at a recent webinar series, president of the Jamaica Chamber of Commerce Lloyd Distant Jr explained that the protocol became necessary especially since debates on mandatory vaccination in the workplace intensify.

He said, “about a month ago the private sector organisations, the JEF (Jamaican Employers Federation), PSOJ (Private Sector Organisation of Jamaica), JMEA (Jamaica Manufacturers and Exporters Association) and JCC (Jamaica Chamber of Commerce) would have met with the union leadership and had a heart-to-heart and a heartfelt conversation around what is most important. Across the piece, all of us were very consistent in our views that vaccinations and encouraging vaccinations in the workplace and across the island were most important. We were of the view that it wasn’t quite time to put a mandatory policy, certainly a national mandatory policy in place but we need to start working towards it. So we encourage the Government and our lawmakers to begin looking at relevant legislation and the likelihood that there may be a time that government may need to move to allowing and enabling employers to put policy in place to mandate vaccination.”

The proposal follows COVID-19 mitigation measures implemented by some companies which require employees to get vaccinated or present evidence of COVID-19 tests on a regular basis, proving they do not have the virus. Some of these measures imply that an employee’s failure to comply may result in their termination.

The JCC president said the hope is that no worker will lose their job but he admitted that dismissal is not off the table.

“We do recognise that as workplace policies are not followed it may become necessary to take stronger disciplinary action. The heart of this protocol is embedded in the discourse that takes place between employers and employees. But if those conversations do get to the end result that is important for protecting employees, employers and businesses then what are the next steps,” he continued.

But terminating an employee may be easier said than done. Commercial litigation and employment law practitioner Conrad E George explained that employers should tread carefully when implementing mandatory vaccination orders.

“The overall position is that you cannot mandate anything, there is no one size fits all as the law treats with every set of circumstances individually. Although the end result may well be the same as a mandated vaccination programme, it is not possible legally to go straight to mandates,” said George.

He stressed that employers must follow procedures even when they are tedious to ensure that the process is objective. He further warned that attention to detail in respect of these steps may become necessary if the employers conduct is called into question before a tribunal.

“Every employer has a duty to provide a safe system of work to each of his employees and similar duties to members of the public. If an employer fails to do all that is reasonably necessary to keep his workplace safe, he may be sued by somebody who has gotten sick or injured as a result of that and can prove that it was caused by that failure on the part of the employer. The objective really is not for anybody to be dismissed. The hope is that the stages set out in the protocol, the detail with which these are described will enable the parties to find common ground and not result in dismissal,” George outlined.

He also explained that the law prohibits termination without justifiable cause.

“The statutory position is that an employer must not dismiss an employee without all the circumstances making it reasonable for them to do so. The technical language in the statute is unjustifiable and the courts have held that unjustifiable means unfair or unreasonable in all the circumstances. The alternatives to vaccination may be very limited but they may exist. Some people may be able to work from home for the rest of the pandemic, for other reasons some people may be able to avoid situations where they can pass the virus to others and these need to be looked at because the failure to look at them even for the purpose of box ticking can cause the employer to be liable from justifiable means.”

Similarly, attorney-at-law Carla-Anne Harris-Roper noted that “you may have instances where an employee may have legitimate reasons where the position that has been taken is not compatible with their personal circumstances.”

She explained that these reasons could include medical conditions based on sound advice from a physician.

In the same vein, she said employers must give sufficient consideration to the availability of vaccines in the island and the challenges people face in either getting a first dose or accessing vaccines altogether. She said the absence of universal availability is a strong case which employers must be aware of.

Notwithstanding, the attorney contends that whereas mandatory vaccinations may be touted as a way to reduce the spread of COVID-19, it should not be given precedence over some of the other mitigation measures which she noted are already mandated under the Disaster Risk Management Act (DRMA) 2021.

These include social distancing orders as well as wearing a mask. She argued that mandatory vaccination policies do not absolve employers from ensuring these fundamental practices are followed, noting they are scientifically proven to be effective in light of the fact that vaccinated people can still carry and pass on the virus.