Mandatory vaccine debate gets louder
Nurse Stacy Rennalls administers the COVID-19 vaccine to Tiffany Glave, while her mother Patricia Nembhard looks on during yesterday'svaccination blitz at the National Arena in Kingston. (Photo: Garfield Robinson)

Attorney-at-law Gavin Goffe has sided with Jamaican Bar Association President Alexander Williams in calling for the Government to seek the attorney general's advice and state its position on mandatory vaccines for workers amidst controversy stirred by recent statements from a labour ministry official.

Divisional director of industrial relations and allied services at the ministry Gillian Corrodus, in an interview published in this week's Sunday Observer, indicated that Jamaica has not made vaccinations mandatory, so it is not a breach if a worker does not choose to be vaccinated at this point.

She further said mandatory vaccinations have not been promoted by the International Labour Organisation whose standards highlight that such a position would largely depend on national regulatory frameworks.

Williams, in a swift response yesterday, said the issue must be examined and resolved in the context of all relevant legislation, including the constitution as well as rulings by the courts.

“The question is not simply whether there are laws that support mandatory vaccination, but additionally whether there is a law that prohibits it. Presently, there is no such law that expressly neither prohibits mandatory vaccination against COVID-19 by an employee, nor has there been a ruling to that effect by a court or other competent authority,” Williams said.

He said the Bar Association would be publishing its official position on the constitutionality of vaccine mandates in due course, and advised the ministry to be guided by the legal opinion provided to the Government before speaking further on the issue.

Speaking with the Observer yesterday, Goffe, a partner in the law firm Myers, Fletcher & Gordon, and head of the Litigation Department there, said, “I completely support that position because what we have now is that there are a lot of questions being asked and the Ministry of Labour has stepped in and given a very definitive position, but it doesn't appear on its face to be supported by a legal analysis and that's what the country needs now.

“The country needs legal experts to be opining on this; it does not need statements being made without full consideration.”

Prime Minister Andrew Holness, addressing the nation in early August, said there were no plans to force Jamaicans to accept the jabs.

“The Government is not thinking about or inclined to mandate any vaccine... our first goal is to have the vaccine widely available,” the prime minister stated then.

According to Goffe, it is even more imperative that the Government declares its hand in the situation since a mandatory vaccination regime exists at present through one of the orders under the Disaster Risk Management Act (DRMA), which has been guiding the Administration's pandemic response.

“For months now the Government has put in the Disaster Risk Management Order that unvaccinated employees aged 60, and over must stay home and if they try to come to work an employer is required to stop them and to call the Ministry of Health and Wellness and report them. It used to be a stay-at-home order and then they dropped it and said it doesn't apply to you if you are fully vaccinated, so essentially, we already have a regime which is discriminating in favour of vaccinated workers and discriminating against unvaccinated workers. Nobody is complaining and saying that is unfair,” Goffe pointed out.

“So right now, that is essentially a vaccine mandate and that is important because what you are saying is that, as an employer, you are breaking the law if you allow your 60-year-old employee to come unvaccinated into your workplace. So if the person chooses not to be vaccinated you have no choice but to fire them or to at least send them home. So, we already have a framework in place which treats unvaccinated senior citizen employees differently from their vaccinated [employed peers],” he argued further.

“So, in my opinion, if that is legal, and nobody thus far has suggested it's not, then an employer taking a similar stance and extending it to ages lower than 60 is likely to be supported by the courts,” Goffe said.

He said the Administration's open position had left a lot of employers in limbo.

“I think most employers were looking to the Government to set the pace. Now, it's one thing if the Government is saying they are not, at this time, looking at that, but they are not closing the door on it; but they haven't said that. They have basically said that they have not yet explored the issue of whether it could be done legally and that's disappointing in a sense because we have had enough time to consider these issues and I think the Government really needs to lead the way in a discussion like that,” he told the Observer.

Turning to the plight of workers whose contracts have not been renewed on the basis that they are not vaccinated, Goffe said they have no recourse in law. He further said he was of the opinion that the court will come down on the side of employers in these matters.

“People who have permanent contracts or indefinite term contracts are in a different category from people who have fixed-term contracts or renewable contracts,” Goffe argued.

“My view on it is that the court is likely to rule in favour of mandatory vaccination, if and when it comes to the court. It is my view that the court is likely to support mandatory vaccination as being a condition of employment,” he said.

In the meantime, he said the position stated by the ministry official posed potential conflict for the resolution of matters by the Industrial Disputes Tribunal (IDT).

“Courts all over the world have supported mandatory vaccination, so it is not the court that people are concerned about. They are concerned about the Industrial Disputes Tribunal because the IDT is basically a law unto itself, in the sense that it doesn't have to apply the law, in that if it thinks that somebody has been terminated unjustifiably, it can reinstate and can order compensation,” Goffe said.

“Here is where the challenge comes in, because the Ministry of Labour controls the IDT, the members are appointed by the minister, so when the ministry publicly says this is unlawful and this is not supported by Jamaica's labour laws, they essentially are sending a message not only to employers and employees but also to the tribunal that they control and saying this is how the ministry views this. It seems to me to be highly unlikely that the tribunal will hear their boss saying that and not act accordingly,” Goffe reasoned.

Asked whether the DRMA order would not, in this case, also prevail, he said, “Most employees are below 60. I am not sure the DRMA would be of much persuasive power to the tribunal when weighed against the statements made by the Ministry of Labour, and so part of the challenge here is that in the same way the court is an independent body, the IDT is not an independent body. So when the ministry makes these statements, if it doesn't have legal advice backing it then it creates a problem for the administration of justice.”

Said Goffe, “So I think the Bar Association is saying wait, don't go out there and make any pronouncements on the law until you have been carefully, properly and thoroughly advised on the law because what you say carries weight in a particular forum.”

BY ALICIA DUNKLEY-WILLIS Senior staff reporter dunkleywillisa@jamaicaobserver.com

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