Gambrill Robinson, Associate Lawyer at Canterbury Law (photo supplied)
Keith Jensen, President of the Bermuda Employers’ Council (file photo)
Employers should speak to their employees if they are planning to implement Covid-19 vaccination guidelines, a lawyer said yesterday.
Gambrill Robinson, associate lawyer at Canterbury Law, stressed that the type and size of a company could be taken into account when managers were considering whether or not employees would be expected to fire the shot.
She said: “In high-risk workplaces where an employer deems it necessary for its employees to take the vaccine in the particular circumstances of the workplace, a new condition of employment that an employee is vaccinated may be considered appropriate.
“In such circumstances, best practice dictates that employers should act appropriately by holding consultative meetings with workers explaining why this is necessary and providing them with unbiased scientific literature about the vaccine, its safety and effectiveness.”
Ms. Gambrill added that employers should also look into whether alternative health and safety measures could be as effective as vaccination – such as remote working.
She said: “Consultation with the relevant unionized workers union is also strongly recommended.”
Ms. Robinson, whose work includes labor law, added that employers should get legal advice based on their circumstances rather than relying on general information.
She warned that in some cases “remedial action for unfair, wrongful or constructive dismissal, breach of contract and / or human rights violation” might exist if someone was fired for opting against the vaccine.
Ms. Robinson said, “Depending on the type of company and the level of risk, the number of employees, the size of the workplace, the alternatives available to protect employees, etc., and the company’s operational needs, the employer may need new policies implements or contract terms according to which employees must be vaccinated as a condition for new or continued employment – for example nurses or dentists in the intensive care unit. “
She added that employers are also required by law to “exercise reasonable care” to ensure the health and safety of their employees.
Ms. Robinson said, “This may impose a duty on employers in high risk workplaces to require employees to take the vaccine.
“Under the current state of the law, of course, any worker has the right to refuse to consent to a vaccine medical procedure, and there is no law in Bermuda that allows employers to force workers to be vaccinated against their will.
“However, depending on the circumstances, the rejection of an employee can again put his work at risk.”
Ms. Robinson added, “If it was a normal, low risk workplace where employees could work comfortably or within a meter of their feet and an employee would be fired for refusing to take the vaccine this will lead to injustice or injustice Dismissal as there is no valid and reasonable reason to request vaccination.
“The current low spread of viruses in Bermuda would also be a relevant factor.”
Ms. Robinson said it was important for employers to remember that workers couldn’t get vaccinated for health reasons, which meant they shouldn’t get the sting.
She added that employees may choose not to be vaccinated based on pregnancy, religion or belief, which are also protected by human rights laws.
Ms. Robinson said there was no limit to the amount of compensation that could be given under the law.
She added, “Given the above risks, the safer way for employers to strongly recommend vaccinations to their employees – by providing established, reputable medical information from state health officials – rather than requiring them to take the vaccine and.” … risking damage claims. “
Ms. Robinson said that while employers were not legally prohibited from asking applicants for personal health information during interviews, “it could potentially be interpreted as discriminatory”.
She added: “We encourage employers not to ask potential candidates if they have a vaccine unless they have a reasonable and objectively reasonable reason to consider it relevant to the position and can explain their reasoning.
“Of course there is nothing stopping a candidate from voluntarily revealing that she received the vaccine and the employer could certainly take this into account when deciding whether to re-hire the candidate, the nature of the job and others Circumstances of the particular situation apply The case justifies making an applicant’s vaccination status a relevant and fair consideration. “
Ms. Robinson confirmed that workers who chose not to be vaccinated but contracted the coronavirus would still be eligible for sickness benefits under labor law.
She said employers should consider cases where people suffer from conditions that prevent them from taking the Covid-19 vaccine safely.
Ms. Robinson said, “As with any other disability, employers may need to make reasonable arrangements for workers who cannot take the vaccine before taking the drastic step of dismissal.”
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 in using rewards to promote vaccination of staff as long as it did not discriminate against people on human rights grounds.
She added: “Giving bonuses or other preferential treatment to employees who receive a vaccination, such as a promotion or a particular career, can be viewed as a discriminatory practice in violation of the 1981 Human Rights Act.
“We encourage employers to take a safer approach by not risking discriminatory practices that punish employees in this way, which the employer is often initially unaware of.
“If an employer has to make vaccination compulsory, clear consultation and open dialogue should take place.”
Keith Jensen, president of the Bermuda Employers’ Council, said there had been no questions from members regarding mandatory vaccination.
He added, “We understand that the Bermuda government is not in favor of making the vaccine mandatory, even for key employees on the island.”
Mr Jensen said, “We assume that all eligible individuals will receive the vaccine and we encourage employers and employees to continue the Covid-19 testing.”
• Are you a company and worried about how to handle vaccinations for employees? To share your story, please send an email to [email protected]
• To read Ms. Robinson’s answers in full, click on the PDF under Related Media.