Any consideration about mandatory vaccination as a precondition for employment must take knowledge of our existing laws – Raj

The Director of the Fiji Human Rights and Anti-Discrimination Commission Ashwin Raj says any consideration about mandatory vaccination as a precondition for employment must take knowledge of our existing laws in relation to the constitutional safeguards against freedom from cruel, degrading and inhuman treatment.

Raj says this includes the right to be free from forced medical treatment, rights and exceptions in relation to employment matters including the obligations of employers and employees in ensuring health and safety as provided under the ancillary legislations such as the Health and Safety at Work Act and the Employment Relations Act as well as consider the evolving jurisprudential developments that weigh the interests of the individual against that of the community and call for sanctions that are lawful, proportionate and necessary.

In a statement he says the position taken by the World Health Organization on vaccination is that ‘vaccines are a critical tool in the battle against COVID-19, and getting vaccinated is one of the best ways to protect yourself and others from COVID-19’.

Raj also says they have arrived at this conclusion based on science and it is critical that employers take a sensitive approach to this issue.

The Director adds the employer must consider all reasonable alternatives to dismissal such as allowing the employee to work from home or allocate alternative duties for a specified period and make an assessment based on whether the employee works in a high-risk area which poses a real and imminent health and safety risk.

Raj says it is crucial for everyone to understand that rights come with responsibilities and every worker has a right to a safe and healthy workplace and the employer is legally obliged to ensure that workers have a safe and healthy work environment.

He further says therefore, the Commission encourages all employers and employees to consider the greater public interest of keeping our workplaces safe and ultimately our homes and our country safe and healthy.

Raj adds we are in a precarious situation, one which demands pragmatic solutions and we need to consider the health of the nation as a whole.

Raj says the State has an important obligation under the Fijian Constitution to uphold the right to health and the right to economic participation and employers and workers have a critical role to play in ensuring that we find the right balance.

He also says in recent weeks, the Commission has received complaints and concerns about whether employers can make vaccination mandatory adding that these employees believe that they must be afforded the right to make an informed choice rather than being compelled to get inoculated, acting under duress because of the fear of losing their jobs and imminence of unfair dismissals if they decide not to get jabbed.

Raj highlighted that some employees, who have had their first dose of vaccination, have also contacted the Commission expressing concerns about their colleagues who have made a conscious choice not to get vaccinated and the health and safety risks that choice invariably poses not only for them in their immediate workplace environment but their families.

He says they raised questions about their ‘right to fair employment practices, proper working conditions and to work in a safe and healthy environment’.

Raj says employers, on the other hand, have also informed the Commission that they have an obligation to ensure a safe and healthy workplace environment and that it is necessary to have all its employees vaccinated to effectively curb the spread of the pandemic which has already halted economic productivity and cost jobs and livelihoods.

He also says consideration must be given to whether an employee not being vaccinated genuinely creates a health and safety risk that the employer cannot reasonably accommodate so that vaccination is not used as a tool for reprisal and recrimination for other pre-existing employment relations issues.

Raj adds to justify such a view will require an increase in risk, based on new cases of community transmissions and a case-by-case assessment taken in each instance.