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Legal minefield on workplace vaccine policy, lawyer warns

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Gambrill Robinson, an associate lawyer at Canterbury Law (photograph supplied)
Keith Jensen, the Bermuda Employers’ Council president (File photograph)

Employers should talk to their staff if they planned to introduce Covid-19 vaccination policies, a lawyer said yesterday.

Gambrill Robinson, an associate lawyer at Canterbury Law, highlighted that the type and size of a business could be taken into account when managers considered whether or not staff were expected to take the shot.

She said: “In high-risk workplaces where an employer does consider it necessary in the specific circumstances of the workplace to require that its employees take the vaccine, then a new condition of employment that an employee be vaccinated may be considered reasonable.

“In such circumstances, best practice dictates that employers should act reasonably by having consultation meetings with employees explaining why it is necessary, and educating them with unbiased, scientific literature on the vaccine, its safety and efficacy.”

Ms Gambrill added that employers should also consider if alternative health and safety measures could be as effective as vaccination – such as remote working.

She said: “Consulting with the relevant union for unionised employees is also highly recommended.”

Ms Robinson, whose work includes employment law, added that employers should get legal advice based on their circumstances rather than relying on general information.

She warned that if someone was fired because they decided not to get the vaccine, in some instances there might be “remedies in unfair, wrongful or constructive dismissal, breach of contract, and/or for breach of human rights”.

Ms Robinson said: “Depending on the nature of the business and level of risk, the number of employees, the size of the workplace, the alternatives available to protect employees et cetera, the operational requirements of the business may necessitate the employer implementing new policies or contractual terms that require employees to get vaccinated as a condition of new or continued employment – say, for example, ICU nurses or dentists.”

She added that employers also had a legal duty to take “reasonable care” to ensure the health and safety of their staff.

Ms Robinson said: “This may impose a duty on employers in high risk workplaces to require employees take the vaccine.

“As the law stands now, of course, every employee has the right to refuse to consent to the medical procedure of a vaccine, and there is no law in Bermuda that allows employers to force employees to be vaccinated against their will.

“However an employee’s refusal may cause their job to be at risk, again, depending on the circumstances.”

Ms Robinson added: “If we are dealing with a normal low-risk workplace, where employees can work over six feet apart comfortably or work remotely, and an employee is dismissed for refusing to take the vaccine, this would amount to a wrongful or unfair dismissal as there would be no valid and reasonable reason to require the vaccination.

“The current low levels of virus spread in Bermuda would also be a relevant circumstance.”

Ms Robinson said it was important for employers to remember workers could choose not to be vaccinated because of a health conditions that meant they should not get the jab.

She added staff may decide against vaccination because of pregnancy, religion or beliefs, which are also protected under human rights laws.

Ms Robinson said there was no cap on the compensation that could be awarded under the legislation.

She added: “In light of the above risks, the safer way forward for employers is to strongly recommend vaccinations to their employees – forwarding established, respected medical information from the Government health authorities – rather than requiring them to take the vaccine and risk … damages claims.”

Ms Robinson said that, although employers were not prohibited by law from asking job candidates about personal health information at interview, “doing so could potentially be construed as discriminatory”.

She added: “We recommend that employers not ask potential candidates whether they have a vaccine unless they have a reasonably and objectively justifiable reason for considering this relevant to the position and can explain their reasoning.

“Of course, there is nothing to stop a candidate voluntarily disclosing that she has had the vaccine and the employer could certainly take this into consideration when determining whether to hire the candidate, again, if the nature of the job and other circumstances of the specific case justify making the vaccine status of an applicant a relevant and fair consideration.”

Ms Robinson confirmed that workers who decided against vaccination but became ill from the coronavirus would still be entitled to sick pay, in line with employment law.

She said employers should take into account cases where people have conditions that prevent them from safely taking the Covid-19 vaccine.

Ms Robinson said: “As with any other disability, employers may be required to make reasonable accommodations for employees who are unable to take the vaccine before taking the drastic step of terminating.”

She added that examples included working from home or wearing a mask and social distancing.

Ms Robinson said there was no legal barrier against employers from the use of rewards to encourage vaccination among staff, as long as that did not result in discrimination towards people on human rights grounds.

She added: “Awarding bonuses or other preferential treatment to employees who receive a vaccination such as a promotion or a certain career fast-track may be viewed as a discriminatory practice, in breach of the Human Rights Act 1981.

“We encourage employers to take the safe approach by not risking discriminatory practices that penalise employees in this manner, oftentimes unbeknown – at first – to the employer.

“If an employer must introduce the vaccination requirement, then clear consultation and open dialogue should take place.”

Keith Jensen, the president of the Bermuda Employers’ Council, said there had been no questions from members over making vaccinations mandatory.

He added: “We are aware that the Bermuda Government is not in favour of making the vaccine mandatory, even for essential employees on the island.”

Mr Jensen said: “We anticipate that all eligible persons will get the vaccine and we encourage employers and staff to continue with Covid-19 testing.”

Are you a business and concerned about how to deal with vaccination among employees? To share your story, please e-mail news@royalgazette.com

To read Ms Robinson’s responses in full, click on the PDF under “Related Media”.

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Published February 14, 2021 at 1:44 pm (Updated February 14, 2021 at 1:44 pm)

Legal minefield on workplace vaccine policy, lawyer warns

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