Conrad George and Andre Sheckleford | Dismissing employees who refuse to be vaccinated

There have recently been reports of disputes arising in the workplace over the reluctance of employees to abide by an instruction from the employer to be vaccinated for COVID-19 or resign.

So far, much has been said in various fora about the constitutional issues that surround any governmental instruction to be vaccinated. This article addresses the different issues that are relevant to the workplace, assuming the availability of the vaccine, and facilitation by the employer of the vaccination process.

An employer can lawfully dismiss an employee in Jamaica only if the dismissal is “justifiable” under the Employment (Termination and Redundancy Payments) Act. The term ‘justifiable’ is not defined in the act but has been taken by our courts to mean something akin to “fair”.

In essence, a dismissal must be reasonable or fair in the particular circumstances to be justifiable.

For the most part, an employer will seek to dismiss an employee for a serious breach of the employee’s contract of employment, which may involve a breach of expressed or implied terms of that contract. A dismissal for refusal to be vaccinated may in some circumstances amount to a breach of an implied term, or alternatively, may be justifiable on the specific facts of a given situation.

So, how could the right to dismiss an employee who refuses to be vaccinated arise?

The currently received medical wisdom on COVID-19 vaccination, albeit with some measure of dynamism, is that

• Vaccination provides a high degree of protection against contracting the virus, which protection is not absolute.

• Vaccination provides a high degree of protection against becoming seriously ill if the virus is contracted.

• A non-vaccinated person is far more likely to contract and transmit the virus than one who has been vaccinated.

• The vaccination is safe, although as with most pharmaceuticals, there is always the possibility of some adverse reaction, which could be serious.

• The potential adverse consequences of vaccination pale into statistical insignificance when weighed against the consequences of contracting, and possibly spreading, COVID-19.

Employers must take these medical considerations seriously as each employer owes a duty to provide each of their employees with a safe system of work and take all reasonable steps in accordance with ‘state of the art’ practice to protect customers and any other members of the public with whom the employer’s establishment interacts.

To do otherwise could lead to liability to any employee or member of the public who suffers loss that can be shown to have been caused by a breach by the employer of a duty of care.

The central question

The question is then, given the medical opinion, would the presence of an unvaccinated employee give rise to a risk of liability on the part of the employer sufficient to justify dismissal?

And the answer is: it depends. One size does not fit all.

Some examples may illustrate the point.

The employers of office workers, retail shop assistants, waiters, waitresses and other hospitality workers, airline stewards and stewardesses, workers in care homes and homes for the elderly may be failing to apply state-of-the-art standards of care were they to permit unvaccinated staff to interact with other employees, customers, and members of the public and may be exposed to liability in consequence.

On the basis of these factors, an employer of such employees might be justified in considering dismissing an employee who refuses to be vaccinated.

By contrast, an employer of a tractor driver on a farm, who does not interact with other employees or members of the public in the course of his duties, would be unlikely to suffer increased risk were the driver to refuse to be vaccinated.

An employer of such a tractor driver might struggle to justify dismissal for refusing to be vaccinated.

So, all relevant factors at the workplace must be considered in determining whether there may be a basis for an employer taking action against a vaccine refusnik.

Wherever there is possible liability, it is likely that insurance considerations will also arise. In the midst of a pandemic, the presence in an establishment of unvaccinated employees may lead to increased insurance premiums. This may also be a factor that an employer would be entitled to take into account in considering whether to dismiss.

There may also be international norms that become established, and these should be considered as they may become recognised as the state-of-the-art standards of care and affect duties of care and the obligations of employers.

Procedure for termination

Even if it can be shown that the employer may be exposed to liability by an unvaccinated employee, the employer cannot move straight to dismissal. The employer must act reasonably in the particular context.

The employer must, therefore: ascertain the reason for the refusal – is it medical, religious, or otherwise, as the reason for the refusal may be a factor in determining the reasonableness of the employer’s response; consult with the employee in question, or the employee’s union representative, if the employee is unionised; explore any options that might mitigate the risk to others, such as alteration of the employee’s duties, if that is feasible; and if no feasible alternative to dismissal presents itself, move to dismiss.

In short, it is likely that circumstances will arise that justify dismissing an employee for refusing to be vaccinated, but an employer should proceed with caution and measure and must take into account all practical and legal considerations before moving to terminate the employee’s contract of employment.

- Conrad George is a partner and commercial litigation and employment law practitioner and n Andre Sheckleford is an associate and commercial litigation and employment law practitioner at the law firm Hart Muirhead Fatta.