Mandatory vaccination orders by employers could reach court

The passage of the Occupational Safety and Health (OSH) Bill (2017) is likely to create a challenge for employers, who will have to balance their responsibility to protect their workers and customers with the right of their employees to refuse the COVID-19 vaccine, which is currently not mandatory.

The OSH Bill is intended to repeal the Factories Act (1943) and is expected to create a new paradigm for workplace safety and health across Jamaica.

Prime Minister Andrew Holness had announced that the bill would have been passed in Parliament by December 2019, but up to the September 3 general election last year, the bill was still at a Joint Select Committee. The bill is expected to be tabled soon.

President of the Jamaica Employers’ Federation (JEF), David Wan, noted that although the vaccine is crucial to resolving the COVID-19 crisis, there is some level of hesitancy among the workforce. He believes that in addition to enforcing sanitisation protocols and social distancing, some employers will feel the need to encourage workers to become vaccinated, given their obligations and responsibilities under the OSH bill.

“It creates a burden or a responsibility for the employer to make sure that the workplace is safe for all workers and customers that come into the business, and you have some workers in your operation who are not vaccinated. That can be interpreted as a less-than-safe environment for everybody else and the customers who come into your business, so that is what we are dealing with,” he said.

He is not ruling out the possibility that the courts will have to get involved.

“I think what is going to happen is that someone will take it to court because I think some employer may, I wouldn’t encourage it, but they may discharge someone if they don’t get vaccinated, and that person may take it to court, and the court will then decide [whether] the employee’s right of not vaccinating [is] superior to the employer’s obligation to keep the workplace safe,” he said.

In April, Caledonia Outdoor Limited, a major advertising company, gave its employees 14 days to take the COVID-19 vaccine or face the risk of losing their jobs. The company later stated that staff members were being strongly encouraged to take the vaccine to keep themselves and their colleagues safe.

Wan said employers are looking to the Government to set a precedent, but Labour Minister Karl Samuda sought to use moral suasion to get Jamaican workers to take the vaccine on Tuesday as he and other government officials made a floral tribute to labour movement activist Aggie Bernard as part of activities for Workers’ Week.

“The greatest favour you could do us here as political leaders and administrators is to go out at the earliest possible time and get vaccinated. Have no fear because it is the only way out of this pandemic,” he appealed.

“Quarantines and certain restrictions that are in place can only help so much, but in the final analysis, if we do not give the vaccines to our people, then we will have this continuing struggle to go through and suffer the pain of unemployment, lack of economic development, and [stymie] the contribution that our workers can continue to make on behalf of the people of Jamaica,” he said.

The Government has instituted a work-from-home order in order to minimise the spread of COVID-19 on the job, but Wan said that this is not sustainable. He pointed to a study that was done by the JEF two months ago, which showed that an estimated 70 per cent of the jobs in Jamaica are not conducive to remote work.

“You are either a nurse, you are a driver, you are a cook, you are a carpenter, you are an electrician. You can’t work remotely in those occupations,” he said.

With large corporations in America now summoning workers back to the office, the JEF president suspects that between 75 per cent to 80 per cent of those working remotely in Jamaica will have to go back to the physical workplace eventually.

Helene Davis Whyte, president of the Jamaica Confederation of Trade Unions, said some employers are a bit timid about work-from-home protocols.

“Not every job can be performed away from the physical workplace, but we do have situations still where work can, in fact, be performed from home, and employers are reluctant to have that happen. We are hoping that going forward, coming out of the pandemic, this issue of remote work, working from homewill become more of a fixture, so to speak, under flexible work arrangements,” she said.

She shared, however, that some employers have been using the policy to infringe on the rights of workers who complain, for example, about being asked to perform tasks outside of their hours. There are some employers who believe that workers do not need to take leave now because they are working from home.

nadine.wilson@gleanerjm.com