Introduction
1. On 17 March 2023 the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2023 (2023 Regulations) were published in the Gazette, giving effect to the new Government’s promise to eliminate the July 2021 “No Jab, No Job” policy.
2. The 2023 Regulations delete Part 14A of the Health and Safety at Work (General Workplace Conditions) Regulations (Part 14A). Part 14A was introduced in 2021 to give effect to the “no jab no job” policy.
No jab no job
3. Part 14A was introduced in the middle of a Covid-19 community outbreak in July 2021 (under the Health and Safety at Work (General Workplace Conditions) Amendment Regulations 2021). Part 14A made it unlawful for employers and workers to enter workplaces unless they received the prescribed doses of an approved COVID-19 vaccine. It also allowed workers to be dismissed if they were not vaccinated.
4. At the time Munro Leys raised questions about the legality of Part 14A given their potential effect on workers’ constitutional rights, including their right to privacy and right to freedom from unfair discrimination in employment on grounds such as health status, religion, opinion and belief. At least two constitutional challenges are still before the High Court.
5. On the other side of this argument were the rights of the wider community, including their right to life and health and safety in a Covid-19 world. For all that, Part 14A required workers to obtain the first two available vaccinations, they were never updated to require them to get later “booster” vaccine doses.
The 2023 Regulations
6. For all practical purposes the end of the “No Jab No Job” is arguably overdue; Fiji no longer requires visitors to show proof of vaccination before entering the country, the Ministry of Health has long abandoned its Covid-19 contact-tracing strategy, a high proportion of Fiji’s population was considered to be safely immunised and there are doubts about the efficacy of the vaccines against newer variants of Covid-19. The 2023 Regulations revoke Part 14A entirely with effect from 17 March 2023, returning the law to its pre-July 2021 state.
7. But that was a state with significant uncertainty about the rights of employers and workers, both vaccinated and unvaccinated. Part 14A required an employer to ask for and require proof of vaccination from its workers. Now, to do the same could be unlawful (for example, a breach of the Constitutional right to privacy).
8. Nor is there guidance on how an employer should protect workers who might be particularly vulnerable if they contracted Covid-19. Section 9 of the Health and Safety at Work Act 1996 requires employers to ensure the health and safety at work of their workers. Failing to maintain a safe workplace is an offence.
Can you maintain a mandatory vaccination policy?
9. So can an employer can now still say its workers must be vaccinated in the interests of a safe and healthy workplace? This is unclear, although the 2023 Regulations suggest that special circumstances will be required for this argument to succeed. Without further guidance from the Government, that will be a matter for the Courts – and a matter of potential risk to employers.
Do you need to rehire, or can you now hire, unvaccinated employees?
10. This is entirely up to the employer. The deletion of Part 14A means that unvaccinated workers can now legally enter workplaces and re-join the workforce and cannot (at first sight) be discriminated against if they wish to do so.
11. The 2023 Regulations are silent on whether employees affected by Part 14A can now bring claims against their employers. However, while Part 14A is now gone with effect from this month, that does not mean that an aggrieved worker can sue an employer for relying on Part 14A while it was in force (assuming the employer correctly applied Part 14A), even if the constitutional challenges succeed. An employer cannot be sued for following a law in force, even if it was ultimately struck down as unconstitutional.
Conclusion
12. The repeal of the No Jab No Job policy is probably overdue. Employers are reminded of their obligations to ensure a safe workplace and where necessary, to re-examine their contracts and policies in light of the 2023 Regulations.
Contact
Please 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.