21.04.21

Vaccination Discrimination

Gavin Goffe
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Vaccination Discrimination

Instead of dismissing workers who refuse to take the COVID-19 vaccine, several businesses are contemplating rewarding those who choose to be vaccinated.

With no meaningful anti-discrimination laws, some Jamaican employees could avoid the jab and get 'jook' anyway.

One company is giving each vaccinated employee additional paid vacation days. Another is paying cash upon proof of vaccination, or a “COV” if you will. Another organisation has obliquely indicated that refusal to take the vaccine could affect a worker's prospects of promotion and advancement. That could mean that only vaccinated employees will be considered for renewal of their fixed-term contracts when they expire.

Possibly, the payment of discretionary year-end bonuses could be tied to one's vaccination status. All of this constitutes discrimination, but that does not necessarily mean that it is unlawful or unjustifiable.

Jamaica has no specific legislation to protect employees from discrimination in the workplace.

The main source of anti-discrimination law is the Charter of Fundamental Rights and Freedoms in the Constitution. But there is hardly anything in the constitution that could support such a claim by unvaccinated workers.

Protection from discrimination in the constitution is presently limited to the grounds of one's sex, race, place of origin, social class, colour, religion and political opinions. Even the constitutional right to “equitable and humane treatment by any public authority in the exercise of any function” would not assist private sector workers.

There is also no equal opportunity legislation to protect job applicants. There is no law that prevents an employer from asking an employee if he or she has been vaccinated or requiring proof of vaccination as a condition of hire or rehire. There is also no requirement for an employer to give a reason as to why they are not renewing a fixed-term contract.

According to the United States Equal Employment Opportunity Commission (EEOC), vaccination is not a “medical examination” and therefore questions concerning whether someone has taken the vaccine do not enjoy the statutory protection that would otherwise apply to questions concerning a person's medical history.

The EEOC also advised that if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely-held religious belief, practice, or observance, and there is no reasonable accommodation possible (for example, work-from-home), then it would be lawful for the employer to exclude the employee from the workplace but not necessarily terminate their employment. Although there is no similar guidance from a competent Jamaican authority, the EEOC's position suggests that treating unvaccinated employees less favourably than those who are vaccinated may be justifiable in a pandemic.

Where the reason for not taking the vaccine is linked to a protected status, such as religion or pregnancy, then discrimination in favour of employees who take the vaccine might trigger liability on the employer's part. The Ministry of Health and Wellness does not recommend the AstraZeneca vaccine for pregnant or lactating mothers, other than health-care workers with a high risk of exposure or women with comorbidities. Consideration should therefore be given to extending these discretionary bonuses and benefits to employees for whom taking the vaccine would not be a responsible choice.

The Ministry of Labour and Social Security recently issued a statement that taking the COVID-19 vaccine is an employee's personal choice. In a free and democratic society like ours, rewarding someone for making a personal choice that benefits their employer's business — is good business. A business with a fully vaccinated staff complement is much less likely to be shut down because of a 'workplace cluster' and lose several days of productivity. Certain costs are likely to decrease, including group health insurance premiums, and overtime pay caused by workers covering for their sick colleagues. The company is also less likely to be sued by seriously ill employees for breach of the employer's duty to maintain a safe work environment.

There is also a competitive advantage for businesses that can boast that all their employees are vaccinated. Airlines, cruise ships and hotels are already starting to market themselves to potential guests on this premise. It is natural, therefore, that employers would spend significant sums to incentivise workers to take the vaccine. Rewarding employees who go above and beyond the call of duty is standard business practice.

An employee who chooses not to take the vaccine should not expect to receive the same discretionary perks and benefits as vaccinated employees.

Such an employee might be suffering from a condition known locally as “Bad mind”, for which there is no vaccine or cure.

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is the head of the firm's Litigation Deoartment. He may be contacted at gavin.goffe@mfg.com.jm or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.