QC cautions there could be ‘unrest’ over vaccine mandates

A senior legal professional is warning of possible industrial unrest in Barbados stemming from a clash between COVID-19 safety measures of private sector employers and legislated employee protections.

Managing Partner for the Barbados office of the Lex Caribbean law firm, Garth Patterson, Q.C. cautioned on Tuesday that the two colliding positions have created the perfect storm for strife and confusion in the island.

In fact, Patterson has suggested that Minister of Labour and Social Partnership Relations Colin Jordan has added to the confusion by pronouncing last week on the decision by some employers to mandate that staff be vaccinated as a condition of continued employment.

“Nature abhors a vacuum, and the current vacuum of leadership on the question of workplace vaccination and testing is only serving to exacerbate the dangers posed by the COVID-19 pandemic and to frustrate private sector-led efforts to bring it under control, at least in the workplace,” said Patterson, who is also Regional Managing Partner of Lex Caribbean.

“The health and safety imperatives that have informed certain measures adopted by the private sector have collided with legislated employee protections and the tension between workplace safety and employee rights has created a perfect storm of strife, confusion, uncertainty and potentially industrial unrest in the workplace.”

Citing the statement made by the minister on October 1, the prominent attorney said Jordan incorrectly stated, that it would be for an employer to prove that the vaccination or test is “absolutely necessary” in order for the worker to function in the particular capacity, or to allow the employer to maintain a safe and healthy environment.

Patterson noted that Jordan further declared that if it is determined that a test or vaccination is “absolutely necessary”, then the employer may be required to make reasonable accommodation for an existing worker who does not meet the requirement.

The Queen’s Counsel also questioned the contents of a letter which Chief Labour Officer Claudette Hope-Greenidge sent to the Chief Executive Officer of the Hill Milling/Lionel C. Hill Supermarket group of companies last week regarding his vaccine mandate to staff.

Patterson argued that Hope-Greenidge also misstated the legal position in her correspondence when she stated, “An employee determines whether he or she wants to be vaccinated and is not to be treated unfairly nor discriminated against by the employer, if he or she chooses not to take a Covid-19 vaccine.

“In fact, these utterances by the minister and his Labour Department are ill-informed, substantially wrong, misleading and, importantly, are materially at variance with the legal guidance on the subject of testing and vaccine mandates in the workplace, in the form of a 100-page legal opinion that was commissioned and obtained by the Attorney General, at taxpayers’ cost,” the senior legal practitioner submitted.

That legal opinion from Queen’s Counsel Leslie Haynes advised the Government that legislation mandating COVID-19 vaccination is likely to hold up in court if subjected to a constitutional challenge.

However, it explained that arbitrary mandatory PCR testing may not.

“Vaccine mandates for groups of persons operating in high-risk settings and essential services are more likely to be judicially upheld against a constitutional challenge than a sweeping mandate or ones relating to lower-risk settings and settings in which services not typically characterized as essential are performed,” said Haynes in the document which was submitted to the Attorney General in August.

Without the backing of legislation, Haynes warned that the lawfulness of mandatory vaccinations imposed on public or private sector employees could render them guilty of breaching contracts of employment.

The document stated: “Where there is no such expressed or implied term within a contract of employment, employers requiring unvaccinated employees to produce negative PCR tests or proof of COVID-19 vaccinations as a condition of continued employment, would represent a material change to their contract.”

Instead of mandating regular testing, Haynes’ advice to employers is to “take reasonable precautions to ensure the safety of persons in the workplace”.

Patterson said that either the minister has determined that the advice obtained by the Government is wrong or neither he nor his Labour Department has taken the time to inform themselves of the contents of that legal guidance. He added that, their statements oversimplify and distort the complex legal issues and ignore the guidance that employers may be entitled to take reasonable measures, to be determined on a complicated risk-based analysis, to ensure a workplace free of COVID-19,” Patterson told Barbados TODAY.

“There is no doctrine that the imposition of a testing or vaccination requirement must be “absolutely necessary” to be justified; nor are those measures necessarily discriminatory, at least, not in the legal sense,” he advised.

The leading attorney said what is clear, though, is that the current state of the law is, at best, murky and, at worst, entirely unsatisfactory.

He believes that if the labour ministry’s stance represents Government policy, it only serves to add “fuel” to the already raging “inferno” of confusion surrounding the issue of mandatory vaccination and testing in the workplace.

“However, if the minister and his labour department are not echoing the Government’s policy, then that only underscores the urgent need for the Government to step in and take a definitive stand, by passing legislation or issuing a directive, that articulates in a clear, comprehensive, and definitive manner the Government’s position on the matter,” Patterson suggested.

He is contending that Government, in all its branches, must adopt a consistent and cohesive approach on the issue.

But Minister Jordan today shot back, declaring that labour laws were made essentially to protect workers.

“I remain of the view, not as an attorney, but I am of the view…first of all, what we call labour laws are there to be fair, but also primarily to protect workers. When I look at a law, that is the perspective that I come up with immediately. There is some protection being offered to the weaker party,” he declared.

“In any kind of contract, you just can’t wake up one day and say this is what I intend to do. A decision has to be made in terms of the occupational requirements. You cannot just say to a person ‘you are required to…’ You’ve got to do some kind of explanation.

“You’ve got to tell your worker ‘well listen, you are working with food; the government just passed a law saying that you have to have a food handling certificate. So you can’t work with food unless you have a food handling certificate; and if you are opposed to going to the doctor to get, then we are going to have an issue’,” Jordan illustrated.

He said on the safety and health side, it is a simple matter of again explaining to workers the reasoning behind any decision to mandate vaccinations.

“It is as simple as that. This thing about getting caught up with all the legal jargon, I say it is to the employer to demonstrate…this is not 1675 or 1721, this is 2021. So it is expected that if you are going to change a requirement that a worker is now under, there has to be some kind of explanation. That is why I said, engage with your workers, talk with your workers,” the Government minister told Barbados TODAY.

Jordan also had a special message for Patterson:

“In law, and Mr Patterson must know this, two lawyers get up before a judge and argue two different sides of the same case using the same law.”