The new vaccination regulations are not straightforward
Introduction
1. The Government’s radical new “no jab no job” Regulations may be a short-term fix for employers struggling with vaccine hesitancy in their workforce. But the Regulations may create other legal challenges.
2. Officially, the new rules are the Health and Safety at Work (HSW) (General Workplace Conditions) (Amendment) Regulations 2021. These insert into the existing General Workplace Conditions Regulations a new Part 14A – Covid-19 Vaccination.
3. For convenience we refer to these amending regulations below as the Vaccine Regulations (though that is not their official name). The full text of the Vaccine Regulations is attached with this Alert.
4. Under the Vaccine Regulations:
(a) no employer or worker may enter a workplace and
(b) no employer may permit a worker to enter a workplace
after-
(c) 1 August 2021 unless the entrant has received a first dose of the COVID vaccine, and
(d) 1 November 2021 unless the entrant has received a second dose of the COVID vaccine
and produces vaccination documentation as proof.
5. Exemptions are available from the Ministry of Health for those workers who are younger than 18 or those with legitimate medical reasons.
6. The deadlines may be extended by the Minister of Employment if insufficient vaccines have been made available in a particular area.
7. The Vaccine Regulations were published in the Fiji Government Gazette on 8 July 2021 and took effect immediately. Similar directions, applying to Government employees only, were also announced.
Who is exposed as an “employer”?
8. Many people are employed by companies. So who is an “employer” for this purpose?
9. The drafting on this is not very clear. However the Vaccine Regulations deem for the purpose of entry into workplaces that an employer is anyone who is:
- a sole trader, partner, trustee or director of an employer
- the board or other governing body of an employer (presumably its members)
- if the employer does not have a board or other governing body, the chief executive officer of the employer
- for a ministry or department, the permanent secretary responsible for the ministry or department or the head of the ministry or department.
10. There is a final “catch-all” definition for anyone who performs the functions of the head of the employer.
11. So it appears, for example, that
- no director of a company and
- no board member of an NGO
can enter those workplaces unless they have been vaccinated by 1 August or 1 November (respectively). If even one of them is not vaccinated then the business could face closure orders (see below).
12. On the other hand, it does not appear that this definition of ‘employer’ will apply for the purposes of liability if it is the worker who commits a breach (meaning only the contractual employer would be exposed, unless a director or manager was directly involved in the breach)
Enforcement
13. Under the Vaccine Regulations:
- Fines can be imposed. The maximum penalty for breaches of the Regulations is $10,000 for employers and $1,500 for workers (for certain breaches)
- Businesses can be closed. If an employer has not received his/her first vaccine by 15 August 2021 a labour inspector can order that a business be temporarily closed
- Employees can be dismissed. The Regulations also provide that non-vaccination may be a ground for dismissal of any employee (but see below).
Legal basis
14. The Government has acted under the HSW Act 1996. This law imposes a duty on an employer to protect the health and safety of every worker or visitor to the employer’s workplace. It also empowers the Minister of Employment to make regulations for that purpose.
15. Mandatory vaccination rules for all employers and workers may conflict with internationally recognised human rights guaranteed under international law, the Fiji Constitution and other laws which protect
- freedom from forced scientific and medical treatment or procedures
- the right to privacy and
- freedom from unfair discrimination in employment on various grounds including health status, religion, opinion and belief.
16. The Government may argue that it is justified by other protected human rights such as the right to life and to health and safety. Internationally, to date, mandatory vaccination has been enforced by law in only a limited number of high-risk workplaces such as old people’s homes and quarantine facilities where it can be demonstrated that the circumstances are such vaccination is reasonably necessary to protect the health and life of others, who might otherwise be unprotected.
17. If challenged in Court, the Fiji Government may also seek to rely on an exception in section 6 of the Fiji Constitution which appears to allow protected human rights to be limited when “necessary” by or under a law. It remains to be seen whether a Fiji court would accept this.
How can medical exemptions be obtained?
18. There are no procedures, forms or other guidance in the Vaccine Regulations for this. We would expect that the Ministry of Health will soon clarify this.
Some of the issues
19. Aside from the question of whether the Vaccination Regulations are lawful, some additional issues remain.
This is not a “licence to fire”
20. The Vaccination Regulations say that if an employee has not obtained his or jabs by the required deadlines, this is a basis for dismissal. This does not mean that the employee must be dismissed. Nor does it necessarily mean that the employee can be dismissed without other cause, particularly in view of some of the uncertainties about the Vaccinations Regulations (see below).
21. If it becomes necessary, employers will also have to consider the most appropriate way to terminate employment relationships. Different requirements apply to different kinds of termination. A procedural error may result in a legal claim and financial liability for the dismissal. The Vaccine Regulations do not grant immunity to any employer for these claims.
What is “the workplace”? Working from home
22. The term ‘workplace’ is defined in the HSW Act as any place where a worker works. In the new Covid world of “working from home” this could literally mean the homes of workers who are performing work there. Neither the main HSW Act nor the Vaccine Regulations deal with this issue in any way.
23. However, the context of the Vaccine Regulations makes it doubtful that workplace could include a home for this purpose. Workers do not generally enter their homes for the purpose of work and an employer would never be able to control entry into a worker’s home. So that raises the question of whether, despite the Vaccine Regulations, employers may accommodate unvaccinated employees by allowing them to work from home where feasible. This is what human rights laws would normally require.
What about other visitors to the workplace?
24. The Vaccine Regulations also do not regulate the vaccination status of other visitors to a workplace such as customers who may remain a risk to health and safety. So for any customer-facing business –eg a supermarket, a service station or a hotel – there is still a risk of customers infecting workers. So if the Vaccine Regulations do not work to achieve their intended aim, this is likely to make them more vulnerable to legal attack, because (arguably) they are restricting human rights for no or little purpose.
Compensating employees adversely affected by the vaccine
25. It appears that some accredited vaccines carry different medical risks. The evidence is that those risks are very small but for employees with underlying medical conditions these risks may rise. While exemptions are available under the Vaccine Regulations, not every employee knows he or she has an underlying medical condition. So who would bear any liability to compensate for resulting illness or death from an employee getting a vaccination under compulsion? Some workers may need assurance before they choose to be vaccinated to stay in employment.
26. The Accident Compensation Commission of Fiji is yet to clarify whether it will meet this liability, should it arise.
Proof of vaccination
27. Everyone must produce vaccination documentation to prove that they have been vaccinated. Under the Vaccine Regulations vaccination documentation means documentation, in physical or electronic form, issued or approved by the permanent secretary responsible for health and medical services as evidence of vaccination. It is not yet clear if the vaccination cards that have been issued to vaccinated people qualify as vaccination documentation.
28. In any event there must be a risk that some resisting employees will produce forged or altered documentation to keep their jobs. The Regulations raise the question of whether an employer is excused from liability for relying on forged or altered documents. So the question arises what an employer must do to be satisfied that an employee has met the legal requirements.
Conclusion
29. Employers will need to review information from workers on their vaccination status and at the very least obtain copies of their vaccination cards to conform with these new requirements. They should also assist workers to obtain an exemption if they are qualified.
30. The new Regulations signal a possible general return to work soon (as opposed to the current Government permitting system). However that does not free employers from their responsibilities to ensure a safe workplace, so some employers may choose to continue to have their offices or other workplaces closed.
31. As we know, vaccination may reduce but does not eliminate the possibility of infection by Covid-19. Employers should be using this time to draw up Covid policies in consultation with their OHS Committees and Representatives to create workplaces that meet acceptable standards of Covid safety. The Vaccine Regulations deal with some of their legal issues but certainly not all of them.
Contact Jon Apted or Glenis Yee for further information on this Alert.
Disclaimer
The information and opinions in this Legal Alert are for general information purposes only. They are not intended as specific legal or other professional advice and should not be relied upon or treated as a substitute for specific advice. Munro Leys can accept no responsibility for any loss arising from reliance on the general information contained in this Legal Alert.