Can An Employer Require Employees To Be Vaccinated Against COVID-19?

The answer to this question will turn on the facts of each case. To the extent that the decision on whether or not an individual should receive the Vaccine is voluntary, it is our view that the scales are tilted in favour of an individual’s ability to choose whether or not to receive the Vaccine. Notwithstanding this underlying position, there is no one size fits all answer to whether an employer can require employees to take the Vaccine.

Firstly, it must be noted that there are a number of reasons why an employee may not want to receive the Vaccine. These include:

• medical advice • religious or philosophical belief. • pregnancy. • disability. • existing medication. • previous exposure. • wanting to retain autonomy over their medical choices; or • wanting to wait for more evidence of safety

Internationally, it has been recognized that it may be an inherent requirement of the job to make vaccination mandatory. This has been applied to:

• Healthcare workers. • Employees whose jobs require them to travel overseas. • Employees in the hospitality sector; and • General frontline workers.

In the absence of governmental guidance, or any clear judicial statement on the circumstances in which a COVID-19 vaccination could be an inherent requirement of an employee’s role, it is our view that employers should be cautious in mandating the Vaccine for employees.

CONCLUSION

A blanket requirement for vaccination could expose employers to legal challenges and claims. Though internationally the nature of some types of employment may reduce the risk of legal challenges or claims, we must appreciate that the Courts of Barbados have noted that care should be taken when applying precedents obtained from other jurisdictions. Therefore, the risk that these precedents would not be accepted in Barbados remains.

In any event, given the absence of conclusive information concerning COVID-19 vaccines at this time, employers must also ask themselves, “is a mandatory vaccine policy the best protection that I can offer to my staff?” An employer seeking to introduce a mandatory vaccination policy should seek legal advice from its chosen Attorney-at-Law regarding its potential risks prior to rolling out the policy.