The President of the Fiji Law Society, Wylie Clarke says the right of individual employees to choose not to be vaccinated has to be balanced against the rights of others who may share space with that person and the legal obligations of the employer.
While responding to questions regarding employers terminating workers who do not get the COVID-19 vaccine, Clarke says there are a number of legal issues that this situation highlights about tensions that can arise between an individual’s exercise of human rights and another’s legal obligations that exist independently of those rights.
Clarke says employers must ensure that they carefully follow their legal obligations and act in accordance with the Employment Relations Act.
He says everyone has a right to decide whether to get vaccinated or not - that is a matter of personal choice.
The Law Society President says employers, on the other hand, have a number of legal obligations to consider that are not necessarily compatible with that personal choice.
Clarke says employers do not have a right to choose which of their legal obligations to comply with.
He says for example, employers have a legal duty to protect the health, safety and wellbeing of all their employees while they are at work.
Clarke says bearing in mind that Fiji is in the midst of a public health emergency as a result of COVID-19, a highly infectious virus, a material factor that would have to be considered is the adoption of protocols and policies that meet the requirements of that duty in the current environment.
He says employers also have to consider their potential liability to employees and their families in the event an employee contracts COVID while at work and dies or is permanently, or temporarily, incapacitated.
Clarke also says while the public health emergency in Fiji remains, it will be difficult for employers to reconcile their legal duties and obligations with the exercise of an individual employees right not to be vaccinated and present a potential threat to the wellbeing, health and safety of fellow workers and the workplace.
