Commission encourages all those who are yet to be vaccinated to opt to be vaccinated
Raj says consideration must be given to whether an employee not being vaccinated creates a health and safety risk

Commission encourages all those who are yet to be vaccinated to opt to be vaccinated

Raj says consideration must be given to whether an employee not being vaccinated creates a health and safety risk

By Vijay Narayan
Monday 14/06/2021
Human Rights and Anti Discrimination CommissionDirector, Ashwin Raj

The Human Rights and Anti Discrimination Commission is encouraging all those who are yet to be vaccinated to opt to be vaccinated.

Director, Ashwin Raj there is global consensus that an effective, co-ordinated and equitable roll out of the vaccination programme will not only save lives but can pave the way for a robust global economic recovery.

Raj says the Commission, therefore supports the states’ effort to vaccinate as many people in Fiji as possible to ensure the required herd immunity needed to protect Fiji against this deadly pandemic.

The Ministry of Health’s target population for COVID-19 vaccination is now 587,651.

Raj says vaccination, however, is not mandatory and entirely voluntary.

He says people have a choice but that choice must be based on adequate and accurate information about the vaccine based on scientific evidence and free from prevailing prejudices in our society based on any prohibited grounds of discrimination such as gender, ethnicity, religious or sexual orientation.

Raj says in recent weeks, the Commission has received complaints and concerns about whether employers can make vaccination mandatory.

He says some workers have expressed grave concern about being compelled by their employers to get vaccinated as a new condition of employment.

The Director says these employees believe that they must be afforded the right to make an informed choice rather than being compelled to get vaccinated, acting under duress because of the fear of losing their jobs and imminence of unfair dismissals if they decide not to get jabbed.

Raj says it is imperative to note that the issue, however, is far more complex than employers coercing employees.

He says 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.

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

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.

Raj says employers have implored that they are justified in calling for mandatory vaccination for employees in certain workplaces such as factories and supermarkets that house a large number of workers, those that work with vulnerable groups such as children, the elderly, persons with disabilities and those with other underlying health conditions, high risk businesses and those working in medical facilities.

He says in the interest of the health and safety of the entire workforce, some employers have argued, that every worker must be vaccinated as a new condition of employment.

Raj says any consideration about mandatory vaccination as a precondition for employment must take cognisance of our existing laws in relation to the constitutional safeguards against freedom from cruel, degrading and inhuman treatment which 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.

He 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 says 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.

He says section 9 (1) of the Health and Safety at Work Act expressly provides that “every employer shall ensure the health and safety at work of all his or her workers”.

Section 9 (2) (e) of the Act further places an important obligation on employers “to provide and maintain a working environment for his or her workers that is safe and without risks to health and adequate as regards facilities for their welfare at work”.

The Director says it is imperative to note section 9 (2) (f) of the Health and Safety at Work Act also obligates employers ‘to develop, in consultation with the workers of the employer, and with such other persons as the employer considers appropriate, a policy, relating to health and safety at work, that will (i) enable effective cooperation between employers and the workers in promoting and developing measures to ensure the workers’ health and safety at work and (ii) provide adequate mechanisms for reviewing the effectiveness of the measures or the redesigning of the said policy whenever appropriate”.

He says Section 10 of the Act also prescribes the duties of employers and self-employed persons to non-workers in ensuring that the latter are not exposed to risks to their health and safety arising from the conduct of the formers undertaking while they are at his or her workplace.

Raj says Section 13 (1) of the Act places an important obligation on workers at all times while at work to take all reasonable care not to take any action that creates a risk, or increases an existing risk to the health or safety of any worker including himself or herself or other persons (whether they are workers or not) at his or her workplace as well as in respect of any duty or obligation imposed on the worker’s employer or any other person under the Act to cooperate with the employer, or any other person, to the extent necessary to the employer or other person to fulfil that duty or obligation.

Section 24 (1) of the Employment Relations Act provides that an employer must, unless the worker has broken his or her contract of service or the contract is frustrated or its performance prevented by an ‘act of God’, which includes a pandemic declared by the World Health Organization, provide the worker with work in accordance with the contract during the period for which the contract is binding on a number of days equal to the number of working days expressly or impliedly provided for in the contract.

Raj says employers need to strike the right balanced based on the nature of the industry, whether they are dealing with vulnerable groups, and their legal obligations under the existing employment contracts.

In considering whether to implement a mandatory vaccination policy at the workplace, the employers must take into account the following factors the number of vulnerable employees in the workplace, an assessment of the role’s exposure risk to the virus and the employees’ exposure to the public, is it a closed building/space or is there adequate ventilation, can the workers practice physical distancing in the available space or office setting, do workers have personal protective equipment, has the employer been flexible in giving workers time off to get vaccinated, do the employees have access accurate and timely information about the vaccination, existing work contracts and lawful grounds for modification to include new conditions of employment taking full cognisance of sections 9 ,10 and 13 of the Health and Safety at Work Act, and sections 24, 33, 41, 75, 77, 84, and 85 of the Employment Relations Act, draft guidelines on vaccine policy addressing the specific risks, how it will be managed, why vaccination is required in consultation with workers to balance rights and responsibilities andhas the employer considered other control measures as an alternative to vaccination.

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.

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