TO PUNISH OR NOT?
Lawyers differ on treatment of employees who refuse to take COVID-19 vaccineSunday, April 18, 2021
BY KIMBERLEY HIBBERT
TWO lawyers are of the view that there is nothing wrong with employers punishing employees who refuse to take the COVID-19 vaccine.
But there is also a dissenting legal voice that the Jamaica Observer spoke to in respect of the situation.
Attorney-at-law Gavin Goffe has asserted that employers are free to contract, with respect to non-disciplinary measures, where refusal to take the COVID-19 vaccine is concerned. He said that for some job functions and roles, to ensure efficiency, vaccination is likely to be required.
“There are going to be places right now that certain roles and jobs are only going to be allowed for people who are vaccinated. I know for instance many employers who are not going to allow their seniors over 60 years old, who are the highest risk category, to return to work unless they are vaccinated,” he said.
Though the COVID-19 vaccine is not mandatory, Goffe said employers are free to say that they are only going to be hiring people who are vaccinated.
“There's nothing wrong with that. You can say I am only going to be extending the contract – and a lot of people are fixed term contract – of people who are vaccinated. Nothing is wrong with that [or saying] I'm going to only be allowing entry into my premises of people who are vaccinated,” he explained.
In responding about the legality of indemnity forms using the example of a Declaration of Refusal of Vaccination that Jamaica Defence Force (JDF) soldiers say was presented to them by their commanding officers at Up Park Camp, Goffe said it was “perfectly fine”.
The declaration read, I (name) acknowledge that I have been informed of the availability of (name of vaccine) vaccine, which is a vaccine to provide inoculation against ( name of disease). I hereby declare that I have been informed that if I do not accept the vaccine, there can be no punitive or disciplinary procedures that could ensue. I understand that, having declined being inoculated, there can be administrative implications which may affect my employment, advancement and treatment (if I contract the disease).
Goffe said his justification is that questions about advancement, employment and treatment, are often up to an employers discretion and not things required by law.
“For instance, an employer might say that even though they are not required by law to pay somebody in respect of their sick leave beyond the two normal working weeks that the law provides, they might say if somebody contracts COVID I am going to pay them anyway. That's my discretion,” Goffe said. “But the question should be asked, then what if that person refuses to take the vaccine for no good reason? By no good reason I mean you don't have any medical reason, you don't have any religious reason or another viable reason. You just believe the conspiracy theory and don't want to take it. In that circumstance an employer, I think, would be hard pressed to say they are going to grant any additional benefits to somebody who has made that decision and is coming to them now for the exercise of a discretion, which they are not required to do. I would understand certainly an employer saying I'm sorry, you're on your own, you're not going to be paid because everybody who took the vaccine is here at work and has not had to take any sick leave, I'm not going to treat you differently in that respect.”
Further, Goffe said, “I can't imagine that the army would allow at a vaccination centre people who are working in the centre, who aren't themselves vaccinated. Already you would see how the administrative impact could be. You may have some soldiers working 90 hours a week to fulfil this civic duty, then you have others who say they are not going to take the vaccine for reasons which they are entitled to say. Yes they are taking a risk and it is perfectly fine for an employer to reward people who have chosen to take that risk in the name of the greater good and for the benefit of the organisation and the country. If it is that somebody gets rewarded with a promotion because they have taken that risk, the person who did not so volunteer cannot complain about the fact that they are not advancing at the same pace as somebody else.”
Attorney-at-law Michelle Thomas also supported Goffe's views arguing that if one is unvaccinated, he might put others at risk, depending on the nature of employment or type of work.
“You have certain employment where you have to get vaccinated or you're not going to be entertained for business. With the issue of soldiers, they touch on issues of national security and in the event of a catastrophe or anything grave, the first people apart from doctors or nurses that the country really looks to is the national defence force which would be the JDF in our instance, so really and truly nothing is wrong with the form. With certain types of employment it is expected that they will be vaccinated and if not vaccinated, they will be placed on back line duties,” Thomas said.
But, attorney-at-law Carla-Anne Harris-Roper, had another view on the matter and said if the argument is for non-punitive measures, then also enforce the practices already in the Disaster Risk Management Act (DRMA).
“What is also very important is the whole issue of social distancing and mask wearing. Those things are mandated under the DRMA and there are fines attached to those things. There is this over reliance on what this vaccine is to do. Some people feel you get the vaccine and you stop wear mask. An employer should be looking – if you're trying to do non-punitive things – use the same approach not just for vaccines, but for all things that are going to be used in the fight against COVID-19. That should be stronger as those other things outside of the vaccine have already been mandated so what's the problem? Why the employer can't say they are going to do that for wearing a mask and keeping social distance?” Harris-Roper reasoned.
In terms of legality, Harris-Roper said though not illegal, from a Constitutional perspective it is questionable as the matter is new and there is no guarantee how a court might interpret legality in terms of the use of the vaccine and your Constitutional right to choice, freedom of conscience and expression and view and beliefs.
“That impacts whether or not you take or don't take it. Until we have come to that point of balancing out your individual rights against the rights of the majority under the Charter of Rights...really and truly can we say with complete certainty that there is nothing quite illegal about it, from a Constitutional perspective? We're not sure yet,” she said.
Instead, Harris-Roper said a more balanced approach needs to be done, rather than speaking in absolute terms.
“I'm not saying it's not legal to do it. I'm saying you cannot look at it in a one dimensional way, you have to look at it in the round. Employers need to appreciate that if they take that kind of approach, even though it might very well be an acceptable legal premise, the medium to long term effects of that and the continued viability of their business is going to be a hidden cost. They may not look at it up front but at the end of the day their business may suffer because of taking this approach. I can totally understand an employer and an employer's chagrin in terms of what's going to happen to their business. People have invested millions in their business and need to ensure their business can stay afloat and that's understandable and appreciated, but at the end of the day no business they have is going to be able to operate as efficiently and effectively with team members that may have an underlying needling feeling that by virtue of employer policies, they are being induced or quietly insidiously forced into going a particular direction that they may of their own selves don't want to go by,” she said.
Harris-Roper added: “Even if it is legal, there are still some non-tangible, non-legalistic consequences of taking that approach at this point, that can ultimately affect business negatively. You have to look at it totally – legally, industrial relations, your company policy brand and whether your business is going to weather this storm and come out on the other side better off.”
Moreover, in terms of punitive actions such as termination or suspension for refusal to take the vaccine, Goffe said it would be risky and unwise for any employer to try and take disciplinary action.
“I understand the problem of terminating someone's employment, which is not the same as not giving them a promotion [or] not assigning them certain tasks, which you are within your right to say to an employee, I am only going to assign these tasks to somebody who has received the vaccine. I may not fire someone, but I know you are not suitable for every task I might need you to do. So, you can do ABC, but I am not going to be comfortable with you doing DEF, because you pose a higher risk to the people who you most interact with,” he explained.
Goffe added: “That means the persons who I am going to be naturally promoting and giving more work experience, giving the longer hours to...the people who I am going to be choosing for those tasks are the ones who are able to operate in every environment. If you are unable to operate in every environment because you have chosen to not be vaccinated, you must recognise that there can be legitimate administrative consequences that come. You are not going to get as much money as the person working overtime, you're not going to be as seen and have as much performance for appraisal purposes as somebody who is working out there in the trenches doing the fantastic job which they are being commended for.”
Thomas agreed that termination or suspension is grounds for discrimination and also advised against employers taking this route.
Besides disciplinary actions, Goffe said there may be other non-punitive actions, such as a lay-off, which an employer might choose to utilise.
“It might be, for instance, that the terms and conditions for employment now need to change to require everybody in this organisation to take a vaccine and you may find that if you are unwilling to take the vaccine, it might mean that the company no longer has as much need for your service, because they can no longer use you to the same degree that they could previously have used you. If I need to have my employees who deal with vulnerable people vaccinated, I might say based on the operational needs of my business, I am going to have to temporarily lay-off somebody who is not contributing to the business to the same extent as others.
“If I can only use a particular worker for 30 hours a week because for the remaining 10 hours of the week, they are going to be coming in contact with people who are in higher risk categories, then that's going to be the first place I am going to try and start downsizing. I'm going to start saying I need more people who are vaccinated and fewer people who are unvaccinated. That's not to say that suspending them is the right way to go about it, but I am saying that you can't expect that there will not be consequences and repercussions, though not of a disciplinary nature, if you decide to not take the vaccine,” Goffe said.