President of the Industrial Court
To add context to my statement, I was a participant at a webinar that was hosted by the Trinidad and Tobago Chamber of Commerce in January this year. My understanding is that the purpose of this webinar was for the Chamber to gather information on the law and industrial relations practice to assist and guide its members in this time of crisis. The discussion was confined to issues related to the world of work.
One of the participants at the webinar asked whether an employer can order an employee to take a vaccine for the employee to continue his or her employment. Those were not the exact words of the question, but that is the gist of the question. I responded by stating that in industrial relations an employer cannot unilaterally alter or change the existing terms and conditions of employment of workers, especially if there is a recognised majority union present at the establishment.
I went further to add that if an individual is not employed at the establishment but is seeking employment, an employer can insist that the individual gets a vaccine in order to obtain employment at the establishment; that is what is called a “condition precedent” to employment. The individual who is seeking the job can decide to become vaccinated or he can decide not to be employed at that establishment on those terms.
This is similar to when you seek to go to a country and the country requires that you take a vaccine to enter, some countries require that the passenger gets yellow fever vaccination. You, the passenger, can decide whether you are entering the country on those terms or not.
However, it is important to understand that it is very different in the case where someone who is already employed with an establishment and is told that it is mandatory to take a vaccine in order to continue to work. The law states that a fundamental alteration of terms and conditions of employment cannot be done unilaterally. The keyword is “unilaterally”. Dialogue and consultation are key for any change or alterations to existing terms and conditions of employment to be effected.
Industrial Court president Deborah Thomas-Felix
What is required in my view, in these times of a crisis is not a unilateral approach but a consultative approach. Any employer who is contemplating this type of change and other changes of the terms of employment should have dialogue with the union. If there is no union, speak to the workers, provide information about vaccination, where possible, and discuss the key reasons why the employer thinks that vaccination is for the safety and benefit of everyone in the workplace.
The employees and their representatives should be allowed to express their views, their support or raise their concerns at these meetings. These discussions can be done virtually in order to comply with the COVID-19 protocol. If the employer thinks at the end of the discussions that the union’s position is unreasonable, there is a process which he can avail himself to resolve any impasse.
We must remember that a vaccine is not a mask, a glove, a helmet or any of the usual PPE used in the workplace environment. Vaccination is invasive, it goes into the body, and as I said then at the Chamber’s meeting, there are certain rights issues that go along with vaccination. There are some people for health reasons, moral reasons or religious reasons who will not want to take a vaccine. Can an employer make it a mandatory condition for employment when the law does not make it mandatory?
The world is experiencing a health crisis of this magnitude for the first time and we are all coping with the attendant stress which is associated with the measures which have been adopted to curb the pandemic. The question is really, whether an employer should be allowed to make a decision that affects an individual’s life without any discussion with that individual? Why not have discussions and assist workers to understand the reason why a vaccine is important in the fight against COVID-19 and why it will be important to have that extra layer of protection in the workplace.
In January at the webinar, we were exploring and examining the law which at present requires that when an employer is contemplating a decision to adopt measures and policies which will significantly alter and affect the lives of their workers, like a vaccination, such a decision cannot be unilateral. At that time, in January, there was no vaccine distribution in T&T so the discussion was academic.
Today, the broader discussion is really whether employers should make vaccination mandatory or should workers be encouraged to voluntarily receive the vaccination.
By far the vast majority of the workforce in countries throughout the world have used the voluntary approach to vaccination. In this country, public health regulations have been put in place by the State to protect citizens. The Government, the largest employer of workers in this country, is encouraging voluntary vaccination of the population, as like many other countries. Therefore if and when, there is a decision to be made on whether there should be voluntary or mandatory vaccination at the workplace; employers may want to take the Government’s position on board before a final decision is made.
I will repeat, in my view, the Chamber was only gathering information on the law and exploring different areas of workplace practice to assist its members. The issue of vaccination was a very small part of that discussion.
The current situation with this pandemic is extremely fluid and it keeps changing every day. What pertains today may not pertain to tomorrow. Who knows what will be implemented in the future, in the world of work, in the continuous fight against this pandemic.
I urge members of the workforce and fellow citizens to follow all the protocols, guidelines and regulations which are in place to fight this virus. And at all times, in everything that you do, consider whether your actions will save a life or whether by your actions you contribute to someone’s demise including yours.
Thomas-Felix is a member of the Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organisation. In that committee, she specialises in maritime law and occupational safety and health. She is also a judge at the International Monetary Fund Administrative Tribunal.