Dear HR – Mandatory Vaccinations

Dear HR,
Why can’t I insist that my employees receive the Covid 19 vaccination as a condition for remaining employed with my company?

Answer: The matter of vaccination is one that causes us to look at individual rights: the rights of the employer and the rights of the worker. The following must be borne in mind:

1. There is no law in Barbados which currently declares it mandatory for citizens to be vaccinated.
2. There is a contract of employment outlining the terms and conditions under which employment with your company has been offered. Your workers have accepted employment under those terms and conditions.
3. As employer, you cannot unilaterally change the contract you have entered into with your workers. You cannot unilaterally change their terms and conditions of employment.
4. To tell a worker who is already in your employ that they must be vaccinated in order to continue working at your establishment is to unilaterally change their terms and conditions.
5. This does not mean that you cannot achieve the business objective of getting your employees vaccinated. The bottom line is that changes to existing terms and conditions can be given effect if workers agree, – changes can be made with their consent.
6. While you cannot unilaterally change the terms and conditions, you can consult with and enter into dialogue with them, letting them know what you would like to happen.
7. You can offer incentives of some kind to persuade them to consider and act upon your request BUT you must remember that not every worker will agree with your proposals – even with incentives being offered.
8. The worker is free to choose in this matter and his/her decision must be respected for what it is – it is a decision not to agree to a change in his/her terms and conditions.
9. However, persons who are not employed but are now seeking employment at your company can be asked to be vaccinated in order to obtain employment
10. These persons can decide to become vaccinated or not to be employed at your business on those terms.
    

But what about my obligation, under the Safety and Health at Work Act, to provide a safe and healthy environment at my workplace?

11. Under the Safety and Health at Work Act 2005, as employer you are responsible “so far as is reasonably practicable”. This means that you cannot insist on any action that is unreasonable and or impossible.
12. While you can put measures in place to protect all who may come into your establishment, you cannot insist on vaccination for your workers since to do so would be a unilateral change in their terms and conditions – an act that is not possible under the law of contract. You can be considered to have acted reasonably practicable if you have implemented systems to
    ensure the prescribed health protocols are followed.