November 2021 | By Dwight Glinton
Employee rights: mandatory covid-19 testing and vaccination
Can an employer make covid-19 testing mandatory?
In The Bahamas, the Health and Safety at Work Act (1) stipulates that it is the duty of an employer to reasonably ensure the health, safety and welfare of all its employees (2). An employer also has a common law duty to provide employees with a safe work environment and a safe system of work (3). An employee is obliged under the Health and Safety at Work Act (4) to take reasonable care of the health and safety of themselves and of others who may be affected by their acts or omissions at work. Also, an employee must cooperate with their employer’s efforts to fulfil its duty to ensure the health and safety of workers. It is generally accepted that covid-19 tests would be deemed a health and safety at work measure under the Health and Safety at Work Act. Therefore, it is widely felt that an employer could make covid-19 testing mandatory given that it would be considered a part of its health and safety responsibilities and employees would be obliged to comply with the testing policy.
Can an employee require that employees pay for covid-19 tests?
Under the Health and Safety at Work Act, an employer must not charge an employee for anything done in pursuance of its statutory health and safety obligations (5). In this regard, requiring that an employee pay for a covid-19 test could be deemed a statutory violation. Also, mandating that employees pay for covid-19 tests may be a breach of the employment contract. At common law, a material variation by an employer of an employee’s contract of employment without the employee’s consent could give rise to a breach of contract, which would entitle the employee to resign and claim constructive dismissal against their employer. Upon being successful in such a claim, an employee could receive damages similar to termination pay. Requesting that an employee pay for covid-19 tests is likely to be deemed a fundamental change in the contract of employment, and the employee could commence legal proceedings on the ground of constructive dismissal.
Should the government wish to formulate regulations that require employers to fund employee covid-19 testing, legislators could review the laws in other jurisdictions which already have specific regulations that require employers to provide covid-19 testing free of charge (6). It is felt that the implementation of such laws in The Bahamas would likely be met with great resistance from employers, particularly those with large staff complements, whose associated costs would be relatively high. As has recently been proposed, the government could provide free covid-19 testing for residents, in which case the issue of mandating that employees pay for covid-19 would become moot.
Can an employer make covid-19 vaccination mandatory?
There are no laws in The Bahamas that require the vaccination of employees generally or within specific professions. While covid-19 testing may be deemed a reasonable health and safety measure under the law, the legal position on covid-19 vaccinations is not as clear. It has long been recognised that employers in some fields, such as the medical profession, could make it obligatory for their staff to receive vaccines because of the inherent risks to employees of contracting communicable diseases. This was affirmed in a recent US case (7), which appears to be the first US court decision on mandatory covid-19 employee vaccination. This ruling is somewhat consistent with long-accepted vaccination policies in other jurisdictions, such as the United Kingdom.
It is uncertain whether mandatory employee vaccinations in other professions that do not have the same level of risk as the medical field would be deemed reasonable. In requiring that its employees take the covid-19 vaccine (“the vaccine”), a non-medical employer could argue that mandatory vaccination is reasonable under the Health and Safety at Work Act and the common law because of the high risk of serious illness that the disease poses to employees. The pandemic has caused significant financial loss to numerous businesses, many of which have been reluctant to reopen, notwithstanding the relaxation of curfews and other restrictions. It seems some employers believe the financial costs and reputational risks associated with a possible outbreak at their business would be greater than any benefits that could be derived from reopening their establishments, so they have decided to remain closed. For many establishments that have reopened, the loss of workers due to illness has reduced productivity. An employer might posit that requiring employees to be vaccinated could provide some protection against the transmission of covid-19 among employees, and between customers and workers. This may reduce any adverse effects of operating during the pandemic.
Those not in favour of vaccination may argue that the vaccine would not be a reasonable safety measure because it is invasive, as it would involve a medical injection. Also, many still consider the vaccine to be unsafe because of possible side effects that could cause serious illness. Further, the vaccine has not been proven to be fully effective in preventing the spread of covid-19. Notwithstanding the gravity of the pandemic, these factors may make it difficult for an employer to prove that requiring employees to take the vaccine is a reasonable health and safety measure. In the absence of any government regulation or judicial pronouncement, an employer may not have a strong legal basis for making the vaccine a mandatory requirement for employees. If an employer implements a mandatory vaccination policy, its employees may have grounds for commencing legal action for breach of contract. Mandatory vaccination may be deemed a breach of contract because it would impose a new condition that would not have been agreed by the employee.
Even if the vaccine were deemed reasonable or legal, there may be a number of legitimate reasons why an employee may not comply with a requirement to take the vaccine. There may be employees who have disabilities or pre-existing health conditions for whom vaccinations could cause severe ailments. Making it obligatory for these employees to take the vaccine could give rise to discrimination claims against the employer under the Persons with Disabilities (Equal Opportunities) Act (8).
At present, there seems to be no precedent in The Bahamas or any other common law jurisdiction in which the courts have held that an employer’s policy of mandatory employee testing and vaccination would be reasonable. In the near future, there may be a judgment on the legality of mandatory employee covid-19 testing and vaccinations, but, until then, interested parties can only formulate opinions on this issue in the context of current laws.
(1) Chapter 321C of the Statute Laws of The Bahamas.
(2) Section 4.
(3) Lightbourne v Carnival’s Crystal Palace Hotel Corp  BHS J No. 63 at paragraph 38 per Osadabey J.
(4) Section 7.
(5) Section 9.
(6) For example, the United Kingdom’s workplace testing guidance.
(7) Christy Beckerich et al v St Elizabeth Medical Centre Inc el al, 24 September 2021, US District Court for the Eastern District of Kentucky, Case 2:2021cv00105.
(8) Section 16.