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Government: Employers cannot force staff to be vaccinated

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Kim Wilson, the Minister of Health (File photograph by Blaire Simmons)
David Burt, the Premier (File photograph by Akil Simmons)

Sacking workers who choose not to be vaccinated against Covid-19 would breach employment law, the Ministry of Labour warned yesterday.

A spokesman added that staff who do not get the jab would still be entitled to sick leave if they tested positive for the coronavirus.

He said: “The Ministry of Labour can advise that termination for refusing to take a vaccine would constitute unfair dismissal and breach the Employment Act.

“Furthermore, until regulations say otherwise, the Act must be interpreted along with all actions taken by an employer.

“As such, if an employee is not vaccinated and is confirmed positive for Covid-19 they will be entitled to sick leave as per the law.”

The ministry spokesman explained: “Individuals with pre-existing conditions that prevent vaccination will be relying on the community to achieve herd immunity for them to have a reduced risk of contracting Covid-19.

“The issue of what public health and social measures will continue to be in place for Bermuda as the level of immunisation in the community rises is under review and discussion now.

“In reality, the only absolute contraindication to this vaccine is a previous history of allergy to any of this vaccine's components, which will only apply to a handful of people.”

The comments came after an employment law expert highlighted the need for consultation between management and staff if workers were expected to be vaccinated.

Gambrill Robinson, an associate lawyer at Canterbury Law, said last week: “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.”

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”.

Kim Wilson, the Minister of Health, pointed out on Tuesday that the Government has not made it compulsory for residents to get the jab.

She said: “Clearly it is a concern to any administration if employers are flouting the law and imposing conditions such as mandatory vaccination, when the Government themselves haven’t imposed that as a condition with respect to either working in Government or alternatively to members of the public.”

David Burt, the Premier, suggested then that “reasonable boundaries” could be set.

But he added: “I’m not saying that that means that employers should mandate vaccinations.”

The Premier said that the Government might consider offering advice to employers about how to tackle the problem.

He added: “I know certainly that right now it’s not at the top of mind for the work of the Ministry of Labour.

“I think the minister laid out very clearly his view and vision for making sure that Bermudians are at the centre of the economic recovery and the work which is taking place inside the Ministry of Labour.”

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Published February 18, 2021 at 8:08 am (Updated February 18, 2021 at 8:08 am)

Government: Employers cannot force staff to be vaccinated

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