Rose-Marie Belle Antoine

Rose-Marie Belle Antoine

I am repeatedly asked by various stakeholders whether Covid-19 vaccination could be made mandatory, so today I offer some initial thoughts.

This is not a clear-cut legal question and there are good arguments on both sides. There is no law, precedent or policy which governs the matter at present. Labour law, public health and human rights issues intermingle and ultimately, what is reasonable and in the majority interest would likely prevail.

Legislation compelling vaccination

Mandatory vaccination is, of course, an abrogation of individual rights, but it must be balanced against the collective rights of others—like public health and importantly, the protection of the individual worker himself or herself in a very high risk environment. No right is absolute and law does not, or should not exist in a vacuum.

It is likely that a state will have a wide margin of appreciation in formulating such laws. Caribbean constitutions have different formulae for laws that limit rights, but a common denominator, whether specifically stated, or through elucidation by case-law, is reasonableness. Thus, the Trinidad and Tobago Constitution, under s.13, permits such abrogations unless shown “not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” It requires the special 3/5 majority of Parliament.

See too, Jamaica s. 13 (2) where limitations “may be demonstrably justified in a free and democratic society”. This limitation is to be read within the context of the broader public interest, often specifically stated, such as in the Grenada constitution, s. 1 which speaks to “limitations” of rights to protect the “public interest” or s. 11 Barbados and s. 14 of the Jamaica Constitutions respectively.

In Guyana’s Constitution, section 40 (2) proclaims that rights limitations are “designed to ensure that the enjoyment of the rights and freedoms of any individual does not prejudice the rights of others or the public interest.” Mandatory vaccination utilised to protect others could easily meet these thresholds in the current pandemic.

Importantly, several Caribbean constitutions expressly provide avenues for the state to limit individual rights where public health is at risk as is reasonably required and this may justify mandatory vaccines. The rights to not be arbitrarily searched, freedom of conscience, freedom of expression, movement, and protection from discrimination are all rights subject to the interest of public health. See e.g. The  Barbados Constitution, s. 19 (6): “Nothing . . .done under. . . any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision- which is reasonably required- (i) in the interests of . . . public health; and section 17(1) on arbitrary search. See also sections 7 of the Grenada and Saint Lucia Constitutions.

Moreover, the right to “personal liberty” which would ordinarily protect against such compulsion, is specifically compromised. For example, several Constitutions, such as section 3(1)(g) of the Grenada Constitution, s. 13 (1) g) of the Barbados Constitution and s.3 of the Saint Lucia Constitution, make that right subject to the state taking measures to prevent the spread of “infectious or contagious disease.” Public health rationales are therefore to be seen as legitimate objectives to justify limitations of rights.

While mandatory vaccination is yet to be tested in Caribbean courts, in this environment of a pandemic with fast-growing Covid-19 rates and deaths, the trend is to lean in favour of public health imperatives and not prioritise individual rights. This is the reason e.g. why the courts have not upheld challenges by persons who were locked out of their own countries against their individual rights of citizenship. It is also the rationale for current regulations which abrogate our rights to freedom of movement. Already Grenada is leaning toward mandatory vaccination.

A recent landmark judgment from the European Court of Human Rights (ECHR), also legitimises laws mandating vaccines in a public health crisis, opening the door to mandatory Covid-19 vaccines. The ECHR ruled that a compulsory national childhood vaccination programme against hepatitis etc. did not violate the European Convention on Human Rights Article 8 rights to respect for private and family life rights where voluntary vaccination did not prove sufficient to protect the public against serious disease. In this context, compulsory vaccination can be considered “necessary in a democratic society”. Significantly, the judgment emphasised science-based knowledge over fear and stigma, just as courts did in the HIV pandemic. This is likely to be persuasive given the similarity of the EU Convention with Caribbean constitutions. Notably, Trinidad and Tobago and other Caribbean countries already mandate vaccines for children entering schools, so that the bar is not so high. Already, Italy has enacted mandatory Covid-19 vaccine laws.

Non-state actors

Where the state is reluctant to impose mandatory laws, could employers, institutions hospitals etc. impose requirements for mandatory vaccinations? With the exception of Jamaica, human rights considerations do not apply to non-state actors like employers etc. since our constitutions only protect against human rights abuses by the state. However, other principles of law, such as administrative and labour law will be pertinent in the absence of legislation.

First, the oft-touted argument that because there is no law which mandates the vaccine, a requirement mandating it cannot be made, is a misleading and simplistic one. Law is often enacted to prevent acts or omissions, not necessarily to prescribe them. Where the law is silent, the assumption is that it is permissible, unless adjudicated otherwise. Law would be never-ending were it to regulate every aspect of life. There are already many requirements that we accept despite there being no legislation to regulate it. For example, most workplaces, universities etc. already have much latitude in terms of entry and require medicals before hire, or admission, despite there being no law. Indeed, for that matter, no law requires employers to mandate specific qualifications, but they do!

Similarly, many health-care institutions already require staff to be vaccinated for known contagious diseases. The real issue is whether such a requirement for mandatory vaccination would be reasonable.

Given the constitutional leeway in favour of public health imperatives described above, I suggest that employers could justify a requirement in a pandemic context, at minimum where the workplace is a high risk environment, such as health-care, or essential services. This is reasonable both to protect other employees, the interacting public and even the employee himself or herself.

Analogies with immigration requirements mandating yellow fever and other vaccines, or airlines and universities requiring Covid-19 vaccines before travel or admission also point to the likelihood that such compulsion may not be unreasonable. In fact, there is already a de facto mandatory requirement in existence in several sectors.

I note the President of the Industrial Court’s view in a newspaper article that imposing such a requirement could breach contractual terms and conditions of work. This was not a judgment and one does not know how the Court will rule should the issue come before it and arguments assessed. While I agree that employers cannot normally unilaterally change employee terms and conditions, there are exceptional circumstances which permit it, such as where the work environment changes fundamentally and modification is needed to protect the enterprise itself.

Think for example, employees hired as typists who were forced to operate in a computer-based workplace as technology progressed. While the employer may be required to retrain, such modifications will and have been allowed. Given the weight to public health rationales in our legal system it is likely that this would not be considered to be an unreasonable modification of terms and conditions, particularly given the general “fit for work’’ medicals already accepted. Notably, the President felt it would be acceptable for future employees to be so mandated, a view I support.

Equally too, the employer can be held to task for failing to take steps to protect the worker and co-workers. This would be part of the evaluation of what is reasonable and fair. In a high risk environment, it may be irresponsible and even negligent to permit employees to work without a vaccine.

Yet, penalties for failure to meet mandatory requirements might be nuanced in this context. Would it be fair to terminate such an employee, or is it more reasonable for alternative arrangements to be imposed, such as strict safety requirements (PPE e.g.), isolation, home-work arrangements etc so as to retain humanity in the work-sphere?

In assessing reasonableness, whether in relation to the private sector or the state, there must also be legitimate exemptions. Religious objection is relevant as would be medically sound health risks. In such circumstances stringent safety requirements (PPE etc.) would have to be substituted.

In sum, at least while the pandemic rages on, there may be good grounds for imposing mandatory vaccination, at minimum for particularly high risk workers, in the public interest.

Of course, all of the above is moot if we cannot obtain sufficient vaccines for the population!

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I have termed Prime Minister Dr Keith Rowley and his Finance Minister Colm Imbert the “Diego Martin dinosaurs”, politicians “intellectually fossilised by fossil fuels” who failed to see the global energy revolution threatening the nation’s economy, about which I warned repeatedly for five years.

I got vaccinated last week. I received the first of two doses of the Sinopharm Covid-19 vaccine. I chose the drive-through option at the Ato Boldon Stadium because it is close to my home and I didn’t have to leave the privacy or comfort of my car to queue up at any stage of the proceedings, which is helpful to people who suffer with Parkinson’s and similar neurological disorders.

There is a story about a Samaritan called “good” in the Bible because he did not walk past a suffering Jew. He had no prior relationship with the man lying beaten on the roadside, was not part of his community, yet he acted out of compassion. Giving up his rights and freedom, he helped the man recover and get on with life.

“By the rivers of Babylon/Where we sat down/And there we wept/When we remembered Zion. But the wicked carried us away in captivity/Required from us a song/How can we sing King Alpha song/In a strange land?”

I cannot pretend to know or fully understand how it feels to be a young person in 2021.

Growing up in 1960s and ’70s Britain as a young black woman was, despite my loving family, often incredibly hard, but it seems staggeringly harder now for the current generation. I cannot imagine waking up at 18 to the news that my entire country, seemingly the whole world, has been shut down, wondering what will happen next and realising that the world has changed beyond recognition and I need to readjust my education and my career pathways.