Mandatory vaccination not likely to be regarded as unconstitutional, says Bar AssociationWednesday, September 22, 2021
THE Jamaican Bar Association (JBA) says it does not believe that requirements for mandatory vaccination, whether by employees or the State, contravene the constitutional rights of Jamaicans.
“A scheme requiring mandatory vaccination is not likely to be regarded as unconstitutional for, while a court may well hold that the rights engaged are being or will likely be contravened, such contravention is likely to be held to be demonstrably justified in a free and democratic society,” the JBA's constitutional and human rights sub-committee said in its legal opinion issued yesterday.
It said limitations applied to the applicable provisions in the Charter of Fundamental Rights and Freedoms for the purposes of mandatory vaccination is likely to withstand judicial scrutiny if challenged.
According to the World Health Organization (WHO), contemporary forms of mandatory vaccination compel vaccination by direct or indirect threats of imposing restrictions in cases of non-compliance.
It says typically, mandatory vaccination policies permit a limited number of exceptions such as contraindications, and that mandatory vaccination is not truly compulsory, as force or threat of criminal sanctions are not used in cases of non-compliance.
However, mandatory vaccination policies limit individual choice in significant ways, by making vaccination a condition of work, or access to education, the WHO advised in April in a policy brief on ethical considerations and caveats for COVID-19 and mandatory vaccination.
The JBA said lawsuits arising from mandatory vaccination imposed by employers are, however, not out of the question, as issues arising are not confined to labour laws as traditionally understood.
“Such litigation may well arise in a constitutional law context in a challenge brought against an employer by an employee who contends his/her fundamental rights have been, are being or are likely to be contravened,” the association said.
Still the JBA cautioned that the fundamental rights and freedoms provided for in the charter are not absolute as there are limits to these guaranteed rights.
“What is plainly required is an assessment of whether the benefit to be gained by the violation is outweighed by the severity of the harm to persons. If, ultimately, the harm caused is greater than the benefit, then the law is unconstitutional,” the sub-committee stated.
At the same time, attorneys are of the opinion that employers and the State have an obligation to prove that any limit on the specified constitutional rights are justified. “Therefore, in imposing any limit on the right to the protection of private life, the Government of Jamaica (and/or, in the context of this opinion, an employer) has the burden of establishing that such a limitation is justified,” the association said.
The JBA pointed out that given the health crisis that continues to wrack the country and reports of “the health care sector ostensibly on the brink of collapse”, the risks associated with vaccination compared to the danger facing the general population from persons being unvaccinated show that “there is plainly sufficiency of importance in violating the rights engaged”.
The association said a court may consider these factors — whether in breach of rights cases brought against the Government or private sector — along with employees' medical condition, and the nature of their work.
Additionally, it should always be factored that employers have a duty to ensure a reasonably safe place of work.
“Therefore, if employees refuse vaccination and continue to attend work, especially in more high-risk fields of employment, this may affect whether employers can effectively discharge their health and safety duties,” the JBA said.
Meanwhile, the attorneys argued that other methods that have been used to control spread of the virus, such as curfew, lockdowns, and gathering limits, have been largely ineffective and that there are indicators that mandatory vaccination could “properly be considered since the displacement to the society on varying levels is less to be minimised using less coercive or intrusive policy interventions”.
The JBA pointed to the WHO's view that data should be available that show that the vaccine being mandated is safe for the target population, and that when these data are lacking or suggest that the risks associated with vaccination outweigh the risks of being unvaccinated, the mandate would not be ethically justified.
The JBA said it did not, at the time of issuing its opinion on this matter, have available data in relation to vaccine-related deaths, illness and/or hospitalisation in the country.