Employers could get themselves in trouble — GoffeSunday, April 18, 2021
EMPLOYERS who say they will not be accepting liability for employees who contract COVID-19 on the job, may find themselves on the wrong side of the law, says attorney-at-law Gavin Goffe.
In an interview with the Jamaica Observer, Goffe said it is too early to say there will be no liability, even though the challenge in establishing liability is that you must prove the person contracted COVID-19 on the job. The attorney said because people are not exclusively in a workplace, that might often be a very difficult task to prove, but it is not impossible, especially given certain types of jobs.
“A cruise ship worker is at the workplace sometimes weeks on end. If a cruise ship employee contracts COVID, it will be very highly likely that he would be able to determine exactly where he got the COVID from. As our knowledge of the virus and its variants increases, we might even be able to do contact tracing to the point we know exactly who you got it from. If you can determine that employee X contracted the virus from employee Y, then that presents a real challenge for employers because each one of them is an agent of the employer. If one gives it to the other, there is certainly, arguably, vicarious liability on the part of the employer if they fail to take appropriate measures to protect one employee from another employer. I don't think it can be said that employers will not be liable. There are challenges to establishing liability, but if those challenges are overcome it is absolutely arguable that an employer could be liable,” he said.
But Goffe also argued that because liability could possibly be established, it makes it important for employers to take appropriate measures to protect the workforce from this virus and people who unreasonably refuse to do their part in terms of protecting the workplace from the virus. These appropriate measures include but are not limited to vaccination and proper hygienic practices such as washing hands, sanitising, wearing a mask and maintaining social distance.
Meanwhile, on the matter of vaccination, Goffe said depending on what medical evidence shows, eventually we may move to having mandatory COVID-19 vaccinations.
“Barring any medical evidence that speaks to there being any significant risks associated with the vaccines, we will be moving to a place where certainly for certain positions and for certain roles you will be required to be vaccinated to even be considered for the job. It will be almost like a qualification just like your educational qualification is. Almost like a license. In the same way obtaining a food handlers permit is required for people working in certain industries you 're likely to see vaccines become required in industries where there are vulnerable populations – persons working in nursing homes, prisons – their movement and the extent to which they can protect themselves from the virus is limited,” Goffe said.
– Kimberley Hibbert