Published 21 July 2021
Basseterre
Buckie Got It, St. Kitts and Nevis News Source
Trinidad and Tobago Loop News
COVID-19 vaccines in the workplace: What does the law say?
As the national COVID-19 vaccination drive continues, questions have been raised regarding vaccination and workers’ rights.
But what does the law state?
Dr Jamille Broome, who is an Employment and Labour Law consultant and lecturer at the University of the West Indies, gives his perspective:
The law on employee vaccination mandates
“For months, public debates have been raging on whether or not: (1) an employer can mandate vaccinations for employees, and (2) whether or not the government can mandate vaccinations for the population. So far, we have heard everyone’s opinions – now here’s the law:
“Those who refuse to get vaccinated claim that their Constitutional rights are being infringed, and under section 4 of The Constitution of the Republic of Trinidad and Tobago, 1976, there are three possible categories whereby these rights may exist:
- Section 4(c) – right to respect for private and family life
- Section 4(h) – freedom of conscience and religious belief and observance
- Section 4(i) – freedom of thought and expression
“Before examining the legitimacy of these rights, of grave importance is explaining the fact that rights under The Constitution can ONLY be enforced against the State and/or its Agents.
“Simply put, it is not possible in this jurisdiction for an individual to sue another private citizen for breach of their constitutional rights; similarly, an employee cannot bring action against a private employer for ‘breaching their Constitutional rights’.”
Dr Broome says this principle (Direct Horizontal Effect) was confirmed back in February 1978 at the Privy Council in the case of Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago.
“As everyone should know from primary school Social Studies, Trinidad and Tobago’s final and highest court is the Privy Council in England, hence the reason why our legal practitioners look to England for clarity and guidance on local legal issues.
“And for those who are unaware, England’s laws have been, and will continue to be heavily influenced by European community law despite Brexit (British Exit from the European Union).”
With that being said, Dr Broome referred to several European decisions on mandatory medical treatment and vaccinations that have been handed down by the European Court of Human Rights (ECtHR):
Acmanne v Belgium (December 1984):
In a case dealing with the compulsory screening for tuberculosis, the court commented that “a requirement to undergo medical treatment or a vaccination, on pain of a penalty, may amount to interference with the right to respect for private life.”
Solomakhin v Ukraine (March 2012):
In considering mandated vaccination against diphtheria, the court was of the view that “[c]ompulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity…”
Dr Broome noted that it’s important to realise that those two ECtHR judgements did not concern highly contagious infectious diseases, so were only based on Article 8(1) of The European Convention on Human Rights, which states:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
However, these next cases give insight into the balance that must be struck under Article 8(2):
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
However, Dr Broome noted that inBoffa v San Marino (January 1998), the European Commission of Human Rights cited that it was ‘necessary in a democratic society’ to have compulsory vaccinations for children against Hepatitis B.
Jehovah’s Witnesses of Moscow v Russia (August 2010):
This case involved Russia’s attempt to ban religious practices under the claims that religious medical beliefs held by Jehovah’s Witnesses encourage suicide by their refusal of medical assistance; however, the ECtHR rejected the argument by saying that mandatory medical treatment or vaccinations must be necessary to protect third parties in order for it to be considered legally legitimate.
And finally, in Vavřička and Others v the Czech Republic (April 2021):
After a thorough legal analysis, the ECtHR confirmed that when it comes to infectious diseases, a compulsory child vaccination programme, with penalties for non-compliance, is not a violation of human rights.
The American stance
Dr Broome said although Trinidad and Tobago is not bound by American legal decisions, “it behooves me to mention a recent and extremely interesting case from a US state known for vigorously defending individual rights, particularly regarding the right to bear arms despite frequent mass shootings and gun violence”.
“Here, the Court dismissed a variety of rights arguments raised in Jennifer Bridges & 116 others v Houston Methodist Hospital (June 2021) where the employees argued that the hospital’s COVID-19 vaccine mandate was forcing them to become human guinea pigs, thereby violating public policy in asking them to take a vaccine with only emergency approval.”
“This particular Southern Texas District Court disagreed that there was coercion, instead agreeing that the hospital was attempting to safely conduct its business and it was solely the choice of the employees to get vaccinated or resign/be terminated (153 employees either resigned or were terminated following the decision).”
“The Texas judgement is consistent with America’s legal position in existence since February 1905 in the case of Jacobson v Massachusetts, where the United States Supreme Court pronounced that individual rights are not absolute when contrasted to public health mandates, therefore, they cannot and will not override compulsory vaccination mandates or laws.”
The Trinidad and Tobago debate
Dr Broome referred to section 6(1) of the Occupational Safety and Health Act which states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees.”
“Based on the foregoing legal obligation and the decisions from some of the most respected courts in the world, I expect that both private employers and the government of Trinidad and Tobago will do what they deem necessary to protect the health, safety and well-being of the general public, despite the inevitable backlash. The law on this topic is clear… and it is unlikely to change any time soon.”
“Lastly, as an advocate for the fair treatment of employees/workers, I still believe that it is essential to point out possible downsides of challenging vaccination mandates by employers.”
“An employee/worker should be made aware that even if s/he pursues a claim at the Industrial Court if the termination or other form of disciplinary action is not effected on the basis of ‘good industrial relations practice,’ an outcome is likely to take years, and with COVID-19 vaccination becoming a pre-employment requirement in many places, employment elsewhere may be difficult – ultimately, it is the employee/worker with much more to lose.”
Dr Jamille Broome is an Employment & Labour Law Consultant and a Lecturer at the University of the West Indies. For more information or to contact him, email [email protected]
