Employers must consider epidemic clauses in employment contracts

Almost daily now there are media reports about the limitations of the covid19 vaccinations, with expected reactions from employees gearing up for the debate about whether compulsory vaxxing is legal or not.

One thing everyone seems to agree on, however, is that the world will never be free from epidemics.

Even the people making billions upon billions manufacturing the current crop of vaccines, with wide-open eyes and deep concern in their voices, admit that none provide protection: they vary from 70 to 87 per cent, and at best they only claim to provide protection for a year or two at most. Which sounds to a cynical observer as though they are laying the foundation for a marketing strategy featuring yearly jabs, and their income for life.

Boris Johnson is threatening to destroy that plan by vowing to open schools, sports, theatres and sit-down restaurants (gasp!) by next week in order to let the disease spread in the UK till herd immunity is reached and this particular epidemic has run its course.

There are many implications for TT organisations to consider, not the least being how it can affect the future world of work.

Meanwhile, international organisation insiders, being the ones most likely to know and gossip about inter-org politics, recall sardonically how hard the WHO tried to persuade their boards that bird flu was a pandemic (the more fear they could engender, the greater the budget they could attract to deal with it, the gossip went in those days), but it failed miserably because people developed an immunity, so bird flu petered out after a season or two.

Then it was swine flu they tried with. That didn’t have the Big Pharma communications mafia behind it either.

There were others whose names I have forgotten, that came and went, as most viruses do. But my memory fails me when I try to go back before my birth. Hardly surprising, I suppose, but the one that stays with me most was the genocide of the First Nations people in the continents of North and South America that I read about as a child, who died in their millions when the Europeans came ashore with viral infections embedded in them that they were unaware of because they had themselves become immune to the symptoms: measles, yellow fever, smallpox, and plague. Chickenpox and trichinosis were among the alleged culprits, although smallpox may have been one disease that travelled the other way, from the Americas back to Europe. Leptospirosis, which is something awful you can get from rats, I am informed, was probably brought over on European ships and passed on to native rats.

I have no idea how much of that is true, but I do believe that the human race has lived through epidemic after epidemic in its history and will continue to do so as long as there are co-existing humans and viruses. Which is going to be forever, so we had better get used to them.

So if you are in the business of employing people, you can start by taking in front and drafting epidemic clauses into your employment contracts.

What qualifies as pandemic leave is one clause; pandemic caps for leave for employees who test negative but have positive-testing family members is another. Compulsory vaccination is a third, although the latter is hardly necessary, since the president of the Industrial Court, Deborah Thomas-Felix, has made it abundantly clear, once and for all, that while you can make it compulsory for new employees, you cannot make it compulsory for existing employees who do not have it as part of their existing conditions of employment, which practically no one has.

The only way that could be made compulsory is if it is made into law, which would cost the government money that it does not have, in supplying an entire population with hard-to-obtain vaccine (on an annual basis?) To say nothing of lawyers’ fees dealing with hundreds of potential constitutional cases defending that decision every time someone dies or gets seriously ill after having been vaxxed.

Isn’t there something in constitutional law protecting individuals against forcible penetration of their persons by foreign substances that can potentially kill them? Or can an employer fire someone just for not getting “the jab?”

I really do not know. Other than the directive from the president of the court, which I will certainly abide by, there is no established precedent in industrial relations. The pro-vaxxers say you can die from the virus if you do not get a jab, and the anti-vaxxers say that almost everyone who gets a jab suffers some miserable symptoms within three or four years, depending on their physical make-up. My friend Justice Cross once told me: “A judge doesn’t have to be right, he just has to be obeyed.”

Then there is “long covid” where really valuable skilled employees whom organisations know they really cannot survive without may suffer the post-vax symptoms: what if they cannot maintain their skill levels?

Every honest medical expert I consulted answered: “We just don’t know yet. We have to wait and see."

Even the WHO changes its advice every six months or so.