The new normal continues to evolve. At the start of covid19 spread, we had to determine the appropriate measures required to secure our bodies and environment, and keep our workers and communities safe and virus-free. That resulted in the social distancing, mask-wearing, temperature-taking and sanitisation mandates.
Now we are into the simultaneous vaccine-taking and economic recovery phases.
So what are the considerations that we need to prepare for that will give us the best outcome in the next phase, the post-pandemic phase?
While I understand that we are in the midst of a severe spike in cases, the Government must be able to walk and chew gum and prepare to avert any impending economic crisis from the fallout of our current stagnant situation.
As has been widely discussed, the best chance for us to move forward is getting to that herd immunity. To achieve this status, we need sufficient vaccines readily available to the public with a proper rollout plan to ensure that there are enough shots in arms. This of course brings us to the issue of vaccine requirements or mandates, and whether employers can or will attempt to make vaccination obligatory.
Industrial Court president Deborah Thomas-Felix has publicly pronounced on this possibility, saying it is beyond the powers of the employer to unilaterally alter its terms and conditions and make the vaccine mandatory.
I do not frequently disagree with the president. However, she expressed this opinion in such absolute terms that I was certainly taken aback.
I hold the view that there are instances where employers can indeed make it mandatory for employees to vaccinate. For instance, those who offer marine crews to client companies to work offshore, requiring these employees to live in confined spaces for extended periods. Let us suppose, for example, that the client company demands from the labour supplier that for crews to work on its marine platform, proof of vaccination is required.
One must always remember that terms and conditions of employment are never static. Indeed, they are dynamic in nature and can be amended, subject to good-faith consultation, given prevailing circumstances.
The labour supplier will certainly have no choice but to consult with its employees, advising of the new vaccination requirement if they are to be allowed to continue working on the client’s plant and facilities.
So what could happen if one or a few crew members absolutely refuse the request to be vaccinated, without any sound, reasonable excuse? Well, the labour supplier will not be able to assign those anti-vaxxers to work for that client or for any other client making such demands.
What are the options available to these who now cannot be assigned any offshore work?
For one, they can report the existence of trade disputes to the Ministry of Labour and claim they were constructively dismissed. I am certain that any tribunal of fact will dismiss claims against the labour supplier. as he acted reasonably and fairly.
It is likely. however. that the court will hold that the client company (the legal employer), did constructively dismiss these anti-vaxxers but that the dismissal was fair, particularly if the client company had previously experienced covid19 outbreaks on its facilities resulting in severe economic losses.
My view that employers can in certain circumstances demand vaccinations seems to be supported by other Caribbean leaders such as the prime ministers of St Vincent and the Grenadines and Antigua and Barbuda. Both these leaders identified specific functions where vaccinations would be required in order for employees to continue working. There solutions were simple: no vaccination, no work, and no work means no pay.
In the United States, OSHA recently updated the guidance for covid19 safety compliance. OSHA states that if it is mandatory for employees to take the vaccine and if the worker suffers an adverse effect, then it is considered work-related disease and must be recorded as such. Many contractors in the US had to change their policy from “employees are required to get the vaccine” to “employees are now recommended that they receive the covid vaccine.”
How do we rebuild our economy with or without a mandate for a vaccinated workforce? Should we have in place something like the Families First Coronavirus Response Act in the US, which expired at the end of 2020, and was not renewed, as the vaccination drive was ramped up by the Biden administration?
Our version could give incentives like paid time off or sick leave for people who are taking the vaccine. Some foreign businesses are even offering employees gifts, cash, and extra vacation days as incentives.
We would also need a much faster evolution of use of digital technology and a reduction in bureaucracy. At the start of the pandemic economic recovery teams were set up to come up with a plan. A Roadmap to Recovery post-covid19 pandemic report was submitted. The teams touched on developing protocols for safe return to work, provision of appropriate financial relief through banking, credit unions, etc, building a digital nation, making it easier to do things, and developing critical supporting infrastructure. We certainly need to implement these recommendations to ensure an uneventful recovery.
I believe there must be support from our trade unions and a commitment to allow for a period of industrial peace and flexibility while businesses try to recover. I hope that we do not become narrow-minded and lose sight of our long game as we struggle to cope with today’s urgent crisis.