It has been a tough year, and the scientific medical world is telling us that the vaccine for COVID-19 is going to bring us back to as close to normal as possible. This proposed solution poses legal questions and dilemmas. One of legal questions that has been in the news in different countries is “Can an employer force an employee to take the COVID-19 vaccine?”. There is one simple answer to that question in our jurisdiction. That answer is “no”. But depending on circumstances, not taking a COVID-19 vaccine can be of influence on the employment relationship between employee and employer.
One key factor is, that at the moment, there is no caselaw on this topic. Employment law experts use the existing caselaw in regard to testing by the employer for drug and alcohol or other type of blood testing required by the employer to sketch a legal framework for the COVID-19 vaccine question.
There are different fundamental rights of the employee involved in regard to compulsory medical tests, or in this case vaccination. The rights involved are the right to private life and the right to inviolability of the body, which are both protected in the Constitution of St. Maarten. The European Convention of the Human Rights, that also applies to St. Maarten, also guarantees the protection of private life. The freedom of religion by the European Convention of the Human Rights and the Constitution of St. Maarten may also play a role if the employee does not want to be vaccinated for religious motives. These rights are not absolute. There are legal criteria on circumstances where these fundamental rights can be infringed on. The criteria are if the infringement has a legitimate purpose, foreseeable, proportional and if the same result cannot be achieved with less stringent measures.
In the case of drug and alcohol testing at the Hyatt Hotel in Aruba, the Supreme Court ruled in two cases that the immediate dismissals of the employees were lawful. The first case was in the case of an employee that tested positive for drugs and did not want to submit herself to the mandatory drug treatment imposed by Hyatt. As drug treatment is a medical treatment, compulsory drug treatment is an infringement on the right on private life. The second Hyatt case was of an employee that did not want to submit to testing. The higher court in S’Hertogenbosch upheld an immediate dismissal because a firefighter would not submit himself to a safety blood test to establish if he was exposed to lead.
In these abovementioned cases the employer had a legitimate purpose, the measures were foreseeable, proportional and the same result could not be achieved with less stringent measures. The circumstance of the COVID-19 vaccine is not comparable with the earlier discussed case law, because we are in unprecedented times, and it entails that the employee would have to use a newly-developed vaccine or risk losing his job.
However, the employer has the legal duty to provide a safe work environment for all his employees. In addition to that, the employer should provide a safe environment for its clients. Furthermore, every time that there is an outbreak of COVID-19 at the business, the business is compromised and frequent absences of personnel due to sickness, quarantine or isolation disturb the organization of the employer.
Depending on the interest the employer has for employees to be vaccinated (in certain parts of the organization), the employer could request the employee that does not want to be vaccinated to change to a position or work circumstances in which such requirement is not necessary. If such changes are not possible and there is no other solution, the employer may decide to seek termination of the employment agreement. If such circumstances are sufficient to justify termination of the employment agreement is highly dependent on the industry of the employer and all circumstances of the case.
Clear examples of organizations of which the clients are particularly vulnerable for sickness caused by COVID-19 are hospitals, ambulance personnel, and nursing homes. The employer’s duty to care for these vulnerable clients may require that the personnel must be vaccinated, to be able to do their job without putting the clients at risk.
Although employers cannot compel employees to get the vaccine, they can motivate employees. Certain companies have decided to offer bonusses to employees that take the COVID-19 vaccine. Others have created internal campaigns or give employees free time to get vaccinated.
For employers it is important to know that the ordinance regarding the protection of personal data prohibits employers to register and process medical information of employees. Therefore, the employer cannot register if employees are vaccinated or not.
If an employer wishes to introduce a COVID-19 vaccination policy in his company, it is important to seek (legal) advice or consult an occupational doctor, as this is a complex matter. The expectation is that the (legal) discussion on this matter will keep evolving.
Suhendra T. Leon