JAB OR NO JOB
Employers warned that they could be in trouble if they fire employees who refuse to take COVID-19 vaccineThursday, April 15, 2021
BY ARTHUR HALL
JAMAICAN employers are being warned that they could find themselves on the wrong side of the law if they dismiss any employee who refuses to take the COVID-19 vaccine.
The issue was moved to the front burner yesterday after Caledonia Outdoor Limited, a Corporate Area-based firm, gave its employees 14 days to take the COVID-19 vaccination or submit their resignations.
In a memorandum dated April 12, the firm told its employees that with the availability of the vaccines persons are to ensure that they get the jab in accordance with its COVID-19 protocol.
“The company is, therefore, mandating that all members of staff be vaccinated within the next 14 days. Persons with a medical condition and [who] are not able to get the vaccine [are] asked to provide a letter from their doctor,” said the firm in its memo.
“Persons who refused to be vaccinated will be asked to resign,” added the memo which was signed by a director.
But yesterday the company told the Jamaica Observer that the memo was withdrawn after the vaccination blitz ended on Tuesday with many of its employees not being able to take the jab.
While declaring that workers who were not vaccinated would not be forced to resign, the company said staff members were being strongly encouraged to take the jab to keep themselves and their colleagues safe.
“The staff were given the day off yesterday (Tuesday) to get vaccinated but with the vaccines not available we are encouraging people to get vaccinated as soon as it becomes available,” said the company.
In a follow-up statement, Caledonia Outdoor Limited emphasised that it is committed to the well-being of all its team members and their families and has strongly encouraged the team members to take the vaccine, in an effort to safeguard themselves and their families from the varying levels of damage that can be caused by COVID-19 across all age groups.
“Team members who, for medical reasons, cannot be vaccinated, can provide written exemption reports from their doctors,” the company said.
The company also emphasised that no one will be asked to resign if they fail to receive the vaccine.
Responding to the initial memo from the firm, state minister in the Ministry of Labour and Social Security Zavia Mayne told the Observer that there is no legal ground for companies to dismiss employees who refuse to take the vaccine.
“So far as I am aware there is no law in Jamaica, and certainly not from this Government, giving employers the right to compel an employee to take the vaccine as a means of securing employment,” said Mayne.
That was a view shared by a senior attorney who noted that under the Employment Termination and Redundancy Act employers could find themselves in trouble for “unjust termination” if they were to fire someone who refuses to take the vaccine.
The attorney, who asked not to be named, noted that Jamaica's Labour Code also sets out how an employee can be dismissed and this does not include firing someone because they refused to take the vaccine on any grounds.
In the meantime, veteran trade unionist Lambert Brown also agreed that the initial memo was in breach of Jamaican laws.
“The issue of vaccination is voluntary. There is no law in Jamaica that mandates that it must be taken and an employer cannot force on an employee a term of contract without the employee agreeing. We believe that it would be wrong for any employer so to do,” said Brown who is the president of the University and Allied Workers Union and an Opposition senator.
“I would tell the workers not to resign if they do not take the vaccine as they can take the matter to the Ministry of Labour or the Industrial Disputes Tribunal,” added Brown as he pointed to a recent declaration by the president of the Trinidad and Tobago Industrial Court Deborah Thomas-Felix on the issue.
Thomas-Felix had argued that an employer cannot alter its terms and conditions to make the COVID-19 vaccination mandatory for employees.
According to Thomas-Felix, unless governments establish laws that would make the COVID-19 vaccine compulsory, organisations cannot demand that their workers take the vaccine.
She declared that what employers can do is encourage workers to be vaccinated.
“It cannot be that the whole population is forced to take an injection, whether it is for the greater good or not for the greater good,” said Thomas-Felix as she declared that employers cannot threaten dismissal over an employee's refusal to take the vaccine.
“If someone is working in an organisation and they have been working under 'X' terms, you cannot now say, 'Well, take a vaccine injection or I'll put you out,' because what you are we doing is unilaterally altering terms and conditions,” added Thomas-Felix even as she added that the COVID-19 vaccine requirement could be introduced to new employees so that they can decide before they take the job.