Lutchmedial: Mandatory vaccination could open litigation floodgates

A potential legal issue over mandatory vaccination in the workplace is looming and Opposition Senator Jayanti Lutchmedial is calling on the Prime Minister to establish a policy before a rash of litigation takes place.

Speaking on the United National Congress (UNC) Virtual Report platform on Monday night, Lutchmedial, said she is concerned that some employers are telling their employees they cannot return to work unless they are vaccinated.

She said she is also disappointed that Government has not been proactive in developing legislative measures to address this issue.

Prestige Holdings CEO Simon Hardy is on record as saying that the group of companies is trying to incentivise its workers to be vaccinated against covid19 as it looks towards the possibility of reopening restaurants.

Labour Minister Stephen McClashie is also on record as having said under the current laws of Trinidad and Tobago, employers cannot make it mandatory for their employees to take any vaccine for covid19 or any other illness.

Dr Rowley has given the green light for the food sector to reopen on July 19 on a phased basis. Already the construction sector and related industries have been reopened.

With the phased reopening of the economy Lutchmedial, an attorney, said this is an issue which is bound to arise and she can foresee a proliferation of industrial-relations litigation if the Government continues to drag its feet.

“You ought to have a proper policy in place to address this concept, mandatory vaccines, before you open the floodgates of industrial-relations litigations,” she cautioned, pointing out there were insufficient vaccines for all eligible citizens.

On Tuesday Trinidad and Tobago received a shipment of 800,000 doses of Sinopharm from China to begin another round of mass vaccination.

Lutchmedial recalled that months ago she saw a commentary by the president of the Industrial Court and also one by Prof Rosemarie Belle Antoine of UWI about this issue, but said to date Government has failed to put out a proper policy document

“They have not proposed any legislative measures to deal with this.”

“Then again, we are still waiting on the work-from-home policy that was promised at the start of the pandemic in 2020.”

She said there is precedent in the law for mandatory vaccinations for entry into the school system. That is special-majority legislation, as it interferes with fundamental rights.

“One has to weigh the right against the potential risk to wider society. If employees cannot return to work unless vaccinated, this can be construed as constructive dismissal.

“Any alteration to the terms and conditions of employment can result in litigation, and so some legislative option ought to be explored to not only protect wider society, but to prevent unfair discrimination against persons who cannot for some reason take one of the available vaccines.”

Lutchmedial wanted to know when the Government plans to bring these policies.

"Or is it that we are going to wait until all hell breaks loose?

“People are being deprived, being constructively dismissed from work because they are not vaccinated or because they chose not to or they cannot be vaccinated.

“Don’t you think it’s the duty of a responsible government to have a law or at least a policy in place that governs, for example, what happens if someone cannot be vaccinated with one of the available vaccines? Aren’t you interested in the protection of workers in this country?” she asked, directing her questions to Rowley.

Lutchmedial called upon the PM “to instruct your Minister of Labour to get cracking and get something done on this issue of mandatory vaccination before it’s too late and we have another crisis on our hands involving employment issues and labour issues.”