As Prime Minister Andrew Holness and his Cabinet continue to mull over the possibility of making COVID-19 vaccines mandatory, two of the region's leading legal minds have said that there is nothing in law which would prevent the Administration from going this route.
The two legal luminaries — former president of the Caribbean Court of Justice Sir Dennis Byron and Professor Rose-Marie Belle Antoine, former president of the Inter-American Commission on Human Rights — have also argued that private sector entities are within their right to demand that workers are vaccinated or provide regular proof that they have not contracted the virus.
According to the Ministry of Health and Wellness's Vaccine Tracker, up to yesterday 606,286 doses of COVID-19 vaccines had been administered in Jamaica with 453,543 people getting their first jab and 141,438 people having received their second jab. In addition 11,305 doses of the single-dose Johnson & Johnson vaccine had been administered.
This is in the face of strong vaccine hesitancy which has pushed public discourse on making the taking of the jab mandatory, although Holness has repeatedly said the Government is not yet at that point.
But in a legal opinion prepared for Organisation of Eastern Caribbean States heads of government, Sir Dennis and Professor Antoine said they are convinced that a compulsory requirement for the COVID-19 vaccine is generally justifiable in law.
“The current legal framework, including jurisprudence, be it by analogy, or from the fast-emerging specific case law, does support it,” said the two in a paper seen by the Jamaica Observer.
However, they warned that any mandatory requirement for the COVID-19 vaccine depends on it being readily available to the public at large and should follow efforts to persuade and educate the public to take it.
“But if that does not work, mandatory vaccination is proportionate. In a strong anti-vaxxer situation, exacerbated by media hype, it is easy to determine that these softer approaches cannot work and more forceful methods are needed to protect the population, especially in high-risk contexts,” Sir Dennis and Professor Antoine argued in the paper.
“There are two individual rights conflicting — both anti-vaxxers and others have the right to personal liberty, etc. The rights of the individual who asserts that his or her rights are being violated must also be balanced against the individual rights of others who are pro-vaccination, eg someone who does not wish to come to work due to danger or harm by the unvaccinated can also speak to her own individual rights being compromised. In this case the two conflicting individual rights must be assessed to determine which is weightier,” they said.
“Vaccination involves not just individual rights to dignity, to privacy, personal liberty, religion, etc, but also collective rights, particularly economic, social and cultural rights, [such as the] right of the public to health and safety and even life. These must be balanced,” added the legal luminaries.
“The view that mandatory COVID-19 vaccination is permissible within the constitutional parameters is supported by the fact that Caricom already has clear precedents for legislation mandating other types of vaccines.
“These have never been declared unreasonable, or unconstitutional and, arguably, the COVID-19 pandemic is even more serious. For example, Caricom already has legislation mandating vaccines for children's entry into schools — measles, yellow fever, etc. There is, therefore, sufficient precedent for mandatory COVID-19 vaccination — the horse has already bolted.”
According to the two legal luminaries, mandatory vaccination laws should be viewed not as punitive or draconian laws limiting rights, but as protective legislation aiming to protect rights, including the right to life and the competing rights of others.
“There is, therefore, a low threshold to cross to accept that mandatory vaccination is constitutionally legitimate. In view of the above, mandatory vaccine legislation could easily meet the constitutional reasonableness threshold in the current exceptional circumstance — a life-threatening pandemic which also has the potential to harm or destroy the economy and social fabric.
“The increasing burden placed on health systems, negatively impacting State resources, including its ability to treat non-COVID-19 patients, is another risk and cost relevant to proportionality and reasonableness and speaking directly to the public interest and balancing of competing rights issues,” Sir Dennis and Professor Antoine said.
They dismissed the often-repeated argument that employers violate human rights when they attempt to impose compulsory vaccination on employees.
“The most important premise for compulsory vaccines in the private sector is that, under the common law and via statute, both employers and employees have overriding general duties of care to maintain a safe work environment and to protect the safety and health of employees, co-workers, and even, in certain circumstances, the public,” said the legal minds.
“This is particularly important in the COVID-19 vaccination context, where there is the possibility of employees infecting others. Given that the duty of care extends to workers' obligations to protect co-workers, a worker who refuses a vaccine threatens the safety of others, which may [constitute] a breach. This duty of employees toward health and safety also incorporates a duty to cooperate with the employer in safety and health objectives.
According to the two, requiring a COVID-19 vaccine to protect employees and the public's health and safety is not an unlawful unilateral change in terms and conditions of employment.
“While we agree that employers cannot normally unilaterally change employee terms and conditions, there are exceptional circumstances which permit it, such as where the work environment changes fundamentally and modification is necessary to protect the sustainability of the enterprise itself.
“Economic cost to the employer will also factor into the reasonableness question. If the employer is having to quarantine workers regularly, as is apparently happening in some enterprises, or is faced with multiple sick leave [requests] due to the pandemic, it is unreasonable to expect her to accept this as it may put the survival of the business in jeopardy,” argued Sir Dennis and Professor Antoine.
But they warned employers to tread carefully with the issue of sanctions, including dismissal for people who refuse to comply.
“Penalties for failure to meet mandatory vaccine requirements might be viewed restrictively, given the humane aspects of the COVID-19 context. Would it be fair to terminate such an employee? It is suggested that lesser penalties are more reasonable, such as alternative safety arrangements: isolation, in addition to the usual PPE (personal protective equipment) … so as to provide for the greatest possible leeway to employees reluctant to take the vaccine.”
The paper underscored that exemptions from taking the vaccine on religious grounds should be protected.
“Conversely, where a person presents a valid medical rationale for not taking the vaccine, supported by the usual objective factors … there is no justification for compelling the vaccine,” declared Sir Dennis and Professor Antoine.