[ARANGUEZ, 14 JULY 2021] — From the onset, it is important to establish that the Employers’ Consultative Association of Trinidad and Tobago (ECA) supports our national vaccination efforts and the aim of getting to “herd immunity”. All available research to date indicates that vaccination provides one of the best opportunities to return to some level of normalcy, to realise the reopening of business and economic activity, the restoration of jobs and livelihoods for all employee groups, return to live classroom learning for students, and to protect the safety and health of all citizens.
That being said and notwithstanding the strong arguments being made for mandatory vaccination, the ECA would like to reiterate its stated position in Newsday article of June 17, where it was stated that making vaccination mandatory at the national level in our jurisdiction, must be well-researched and must ensure that inputs from stakeholders at all levels of society – Government, business, labour and civil society are taken on board, before any policy decision is declared or legislation enacted.
Our research suggests that while many countries have contemplated such action, it is being approached with a great deal of caution at this time, with most countries choosing to leave vaccination as a voluntary action. Indeed, the Honourable Attorney General, publicly stated earlier in June this year that the Government of Trinidad and Tobago does not intend to make vaccination for COVID-19 mandatory at this time.
At the level of the workplace, the message from the ECA at this time would be to introduce initiatives designed to educate employees about the personal and societal benefits of vaccination, as well as the importance of vaccination for the organisation and the preservation of jobs. The goal would be to encourage employees to make the personal decision to accept an available vaccine. While employers do have a duty of care under the OSH Act to ensure the safety and health of workers and to provide such information that will support the protection of safety and health at work, a mandatory vaccination policy must be contextualised within several realities, including the type of business being conducted and a careful analysis of the associated risks, the worker or groups of workers involved, the availability of vaccines, and the legislative environment in support of such a decision.
At present, there is no law mandating vaccination for any employee in any industry. While one can argue that our laws are predominantly designed to be restrictive rather than prescriptive, the principles of good industrial relations practice are clear and have been well ventilated in our judicial system. In this regard, employers must be careful not to unilaterally implement decisions that may and arguably affect the ability of existing employees to continue working by effectively changing their terms of engagement without due process, communication, consultation, or consideration of legitimate exceptions, whether or not recognised majority unions (RMUs) exist. This will certainly expose employers to unnecessary risks, including the risk of having to defend a trade dispute at the Industrial Court of Trinidad and Tobago.
Where workers are refusing to vaccinate, employers should first communicate, with patience and respect, to understand the position and offer solutions, rather that resort to condescension and coercion. If necessary, employers will then have to assess alternatives, and as far as is practicable, provide for alternative arrangements such as require the use of additional PPE or more frequent sanitising measures, keep further distanced from other workers and customers, explore remote work options, reassign them (to a less “exposed” position) or adjust work schedules to coincide with slower customer traffic periods. It is important to note that required health protocols, such as mask wearing, handwashing/sanitising and physical distancing are still required, whether an individual is vaccinated or not.
Where all else fails, and if vaccination is deemed to be essential to a high risk job, a decision will have to be eventually made in the interest of the greater good, perhaps by pursuing a course of action towards mutual separation, in accordance with legislative requirements and subject to the terms of any individual employment contract or collective agreement where applicable, and relevant meaningful discussion with the respective employee or Recognised Majority Union (RMU), as appropriate.