Mon | Sep 20, 2021

Orville Taylor | To mandate or not to mandate ... that’s the jabbing question

Published:Saturday | September 11, 2021 | 12:10 AM

Look! This is not a Spanish or Mexican arena, but let’s just be matadors. Nothing in law allows an employer to force a worker to take any COVID-19 vaccine. For the past few weeks since the infection numbers have been rising faster than the level of national frustration, along with the cock and bull stories. So out of an abundance of caution, since the first is innocent, let’s kill the bull.

Inasmuch as COVID-19 came into my house and behaved like the Costa Rican football team and my honest belief that having large percentages of our population, whether nationally or in the workplace vaccinated, I am not prepared to bully or lie to my countrymen. The evidence is impressive, though. In one study from Michigan, using data from 11,834 emergency room patients who tested positive in between December 2020 and April 2021, scientists found that 92 per cent of them were unvaccinated. Similarly, a Colorado study found that one is “5.8 times less likely to die from COVID-19, 3.7 times less likely to be hospitalised for it, and 3.4 times less likely to become a case”.

The data here are not much different. True, there have been cases where fully vaccinated people are severely ill. At last count, there were two in hospital. Furthermore, there are fully vaccinated colleagues, friends, and relatives who have had noticeable symptoms after testing positive afterwards. Interestingly, the consistent reply from them all is, “Imagine if I had not been vaccinated”. Yet a person’s body is theirs and cannot be frivolously intruded upon by anyone else. True, there is nothing in our Constitution or laws that expressly prohibits an employer telling a worker that in the middle of his work life, he must take the prick. However, does the employer have a ‘right’ to do so? It is a simple analysis. Let us look at the right to strike as an example. There is nothing in law that says that an ordinary worker cannot withdraw his labour. Of course, he is free to do so. Being lawful merely means that the person who carries out the conduct will not suffer any penalties from the Government. It has nothing to do with whether or not it is fair or just.

GETS MORE COMPLICATED

Thus, if the worker refuses to carry out his contract, and, therefore, breaches such legally binding agreement with his employer, he can be dismissed. Of course, it does get a bit more complicated after that because the employer will then have to prove to our Industrial Disputes Tribunal (IDT) that the dismissal was justified.

An employer, irrespective of how much he contributes to government or which part of its anatomy he clutches in his palm, he does not have the power in law to abridge a person’s autonomy over his body. The elected officials can. So Government, in the public or national interest can, under extreme circumstances, put in place policies that prevent certain categories of workers from striking and the public from moving freely or even uttering statements, which may affect the greater good. Vaccination policies are not new. Most of us have the ‘mark of the beast’ - that circle of keloid skin on the deltoid muscle. But they are the Government’s purview.

Understand this: If within a contract for employment there is no right of the employer or obligation to have the worker be vaccinated, the attempt to enforce a provision which is not contained therein is ‘repudiatory conduct.’ In such a scenario, the worker can consider himself constructively dismissed. There is no space for the master debate going on among lawyers on this sacrosanct principle. It is as settled as dregs from old-time brown sugar in lemonade.

Still, it gets even more intriguing. Employers are obligated at common law and in statute to create and maintain a safe and secure environment for all workers. This is supported by myriad cases as well as the Factories Act and the binding Labour Relations Code. Similarly, the legislation, Code, and cases place obligations on the part of workers to do their part in maintaining a secure, secure and healthy workplace.

So here is the challenge. If a worker is dismissed, whether constructively or directly by the employer, for refusing to be vaccinated, is it ‘justifiable’? Can it be successfully argued that in each case, there is a real and imminent threat to the work space, other workers, and the overall operations of the business if the unvaccinated worker is allowed to intermingle?

One should note that this could become national policy such as with the pre-school shots. Where it is national policy, the IDT “shall not make any award which is inconsistent with the national interest”. Therefore, it is not impossible that an employer who clearly will have breached the rights of the worker in forcing vaccination or dismissing could find favour before the Tribunal.

However, until Government says that ALL Jamaicans must be vaccinated, the strident employer has a whole lot of castor oil on their slope.

Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.