An alternative to compulsory vaccination at the workplaceThursday, September 16, 2021
The arguments and reasoning presented by Sir Dennis Byron and my erstwhile colleague, Professor Rose-Marie Antoine, in their brief to the Organisation of Eastern Caribbean States (OECS) Heads of Government on the matter of mandatory vaccination were, to say the least, lucid, cogent, and compelling. I would be very surprised if any legal opinion sought in Jamaica on the question would conclude otherwise than that the Government in a free, liberal, democratic society has the right to impose mandatory vaccination where the matter of public health may be at risk. Mandatory vaccination would be viewed, I believe, by most legal experts as constitutional in principle.
At the heart of democratic principle — argued academic scholar Thomas Lindsay in his 1992 essay on Aristotle's critique on the democratic “presupposition” — “lies a tension, evinced most forcefully in our practical struggle to reconcile equality-derived majority rule with individual liberty”. And, even if it were the case that mandatory vaccination was an expression of the will of the majority, Thomas Jefferson asserted that for the will of the majority to be rightful “it must be reasonable”.
While the constitutionality for compulsory COVID-19 vaccination may well be clearly articulated, it does not, ipso facto, meet the threshold standards until certain elements have been analysed so as to determine the reasonableness of a mandatory vaccine policy. It is perhaps important to note that, in a recent ruling a European court argued that, “Compulsory vaccination may well occur if it mandates any negative consequences… arising from the non-compliance with the duty to get vaccinated,” and that such action would “constitute an interference with the right to respect for private life”.
In a matter, therefore, where the employer decides to mandatorily require employees to be vaccinated and there is no constitutionally justifiable measure opposing it, there is a greater likelihood that the court would find favour with the employer. More than half of International Labour Organization (ILO) conventions and recommendations deal directly or indirectly with occupational health and safety, including key conventions like Nos 155, 161, and 187. In fact, as Byron and Antoine point out, the right of an employer to provide a safe working environment is implied in one's contract of employment.
Constitutional principles notwithstanding, however, the matter of compulsory vaccination at the workplace requires deeper reflection and careful analysis. In the end, thin-slicing, as the psychologists would say, could help to bring greater clarity and purpose to balancing the employer's right to guarantee a safe and healthy working environment, with ethical considerations that are inherent in the principle of bodily integrity, when it comes to vaccination. Bodily integrity, as defined, is “the inviolability of the physical body” and the importance, if not right “to personal autonomy, self-ownership, and self-determination” of every human being over their own body. None of the plethora of examples, therefore, to support the right of the employer to determine who enters his premises and under what conditions stand pari passu with the principle of bodily integrity.
The recent workplace protocol, jointly developed by private sector groupings and the Jamaica Confederation of Trade Unions, the OECS brief to the heads, and National Health Fund (NHF) Chairman Howard Mitchell's exhortation about the need for a massive public education programme to get Jamaicans to observe the protocols provide both relevance and context on how workplaces should operate going forward.
We can readily agree on three issues at stake: firstly, the health and safety of employees; secondly, the viability and sustainability of businesses to ensure continuity; and thirdly, the co-operation between employers, employees, and trade unions at the workplace to promote trust and unity for the sake of achieving efficiency and equity.
The draft Occupational Safety and Health Bill does impose on the employer a primary duty of care to employees to eliminate risks to safety and health in so far as it is practicable to do so. The general application of this right, however, is governed by a policy of restraint when it comes to bodily integrity.
In its April 2021 policy brief, the World Health Organization (WHO) makes the point that “mandatory vaccination should be considered only if it is necessary for, and proportionate to the achievement of an important public health goal… if such public health goal ( for example, herd immunity, protecting the most vulnerable, protecting the capacity of the acute health-care system) can be achieved with less coercive or intrusive policy interventions (for example, public education), a mandate would not be ethically justified, as achieving public health goals with less restriction of individual liberty and autonomy yields a more favourable risk-benefit ratio.”
The WHO policy brief goes on to make the point — applicable to Government and employers — to “carefully consider the effect that mandating vaccination could have on public confidence and public trust and, particularly, on confidence in the scientific community and public trust in vaccination generally”. It notes that the “coercive power that governments or institutions display in a programme that undermines voluntariness could have unintended negative consequences for vulnerable or marginalised populations”.
As it relates to the workplace, not only is it imposed upon an employer to exercise a duty of care to protect the health and safety of their employees, but employees also have rights and responsibilities during the pandemic. Chief among them would be fully cooperating with the employer to protect themselves and their fellow workers from health and safety risks.
If, therefore, we are to balance the two issues mentioned previously — public health and bodily integrity — then the standards-based approach advocated by the ILO remain a worthy and viable option. At the heart of this is the principle of dialogue and consultation, and what it would mean were there to be a joint collaboration by management and workers/unions in carrying out a risk assessment at their respective workplaces to determine the possibility of exposure risk to the novel coronavirus. What would be the impact on the confidence of workers and the cementing of trust if, rather than the 'right-is-might' approach, employers and workers work towards developing a more coherent COVID-19 policy on safety and health and the working environment?
Outside of the pandemic itself, the science/evidence must lead us to the conclusion that COVID-19 cases at the workplace are further contributing to a deterioration of work performance, absenteeism, and a threat to the well-being of its workforce.
The truth is that the discipline of employers and employees across the various sectors and industries in observing the health protocol provides strong anecdotal evidence to suggest no causal link between employee COVID-19 cases and a threat to business viability.
But, in the midst of this raging pandemic we must also pay equal attention to the mental elements which have intensified certain psychosocial risks and require compassion and understanding in helping to develop a preventive safety and health culture that includes information, consultation, and training. Not only will we better manage the risks to our health through this approach, but by way of increased cooperation and trust building, more workers would be prepared to be vaccinated and the foundation would have been laid for the long-term improvement in labour-management relationship.
If we therefore tie the OECS brief to the joint union/private sector guidelines, with more emphasis on Howard Mitchell's suggestion about public education on the protocol, we may well be on our way to breathing a little easier and aiding the process towards herd immunity.
Danny Roberts is a former The University of the West Indies scholar, a labour educator, and lead partner at IR Plus Consultants. Send comments to the Jamaica Observer or firstname.lastname@example.org