There are few issues today, as pressing as the persistence of the Covid-19 virus, especially with the advent of the delta variant. As we begin to reopen the economy, top health and legal minds, at our Digital Conversations, explore the issues around the role of vaccines in stemming the tide of the pandemic vis-à-vis the rights of employees.
The panel, which was moderated by Wofai Roberts, Senior Associate and Head of Litigation, Opal Law Office featured as panellists, Chuma Nwankwo, Chairman, Nigeria Employers’ Consultative Association (NECA) Technical Committee of Human Resource Experts; Mary Ekemezie, Managing Associate, Udo Udoma & Belo Osagie; Olumide Babalola, Managing Partner, Olumide Babalola, LP and Professor Babatunde Lawal Salako. Opening remarks were delivered by Ose Okpeku, Partner, The Law Crest LP and Chairman, NBA-SBL, Employment Labour and Industrial Relations Committee
“…There are no less than 13 available variants of the vaccine produced by globally recognised pharmaceutical companies. But the issue is the growing apathy among people around the world. Less than 2% of the world’s population is vaccinated. In Nigeria, we only have about 1.5million people vaccinated. Employers who are more concerned by the seeming scourge of the virus and the refusal of employees to be inoculated have now introduced policies or are considering policies aimed at compelling employees to take the vaccine. This is the basis of what we will be discussing today” said Wofai Roberts.
The Employee Compensation Act 2010 defines an occupational disease as a disease that is contracted in the course of an employment or due to exposure to risk factors at work. A worker or employee who suffers disabling occupational diseases/death, arising out of or in the course of employment is entitled to compensation. COVID 19 is a disease and therefore constitutes an occupational disease as it may be contacted at the workplace.
While acknowledging the obligation of the employer to provide a safe workplace environment and potential liability when they don’t, Chuma Nwankwo says there is no legal basis for compulsion.
“For an employer to insist that employees obtain vaccines, it must be supported by legislation or regulation. Currently, there are no enabling laws or regulations that directly empower the employer to make vaccination compulsory, outside of the healthcare workforce. However, if you’re talking of best practices what employers are doing is encouraging their employees to go for vaccination, improving vaccine confidence, and providing information about vaccination centres. Some have created incentives where they can provide some [additional] payments, where there is a health insurance co-pay system for those who take the vaccine.”
He cautioned however, that employees should consider the need for vaccination in line with their work obligations. “If you are required to travel for work, some countries will ask that you be vaccinated. Are you going to travel in execution of your responsibilities or are you going to [refuse]?”
Alongside the touted benefits of vaccination, there are several reasons why some refuse vaccination including, religious beliefs. Another is that by the data collected, it is only the unvaccinated that remains at risk of illness or death. Mary Ekemezie uses these parameters to justify why compulsion is unnecessary.
“Although these vaccines have been tested, they are really by WHO standards for emergency use. Putting the [public health risk] in context, the only person at risk is the person who chooses not to take the vaccine. Whoever is taking the vaccine is safe. In the some of the [older] contracts I have seen, the employer may reserve the right to ask the employee to submit to medical tests or exams as may be required. However, in the newer contracts, there are express provisions where they indicate that [employees] are required to take the vaccine.
She advocates, however, that in the place of compulsion, an employer can require an employee to sign off his workplace safety liability in lieu of getting vaccinated, because although, “there is a contractual obligation, it must be explored against the National Health Act, and ultimately, it is the employee who has the consent to do what they want, they have the right to decide.”
Olumide Babalola considers compulsion as an infringement on two major fundamental human rights – the right to life and the right to privacy. He says,
“The WHO website indicates that the vaccine is safe for most people, not all. It protects the vaccinated from getting seriously ill. They still do not know the extent to which the vaccine keeps people safe or from passing the vaccine. So what’s the point?”
“It interferes with the right to life. Reuters reported that about 137 died in the US from taking the vaccine between December 2020 and May 2021. Threw deaths were recorded in Scotland by the BBC. All of us are still speculating on how safe it is.
It interferes with the right to privacy i.e., the right to protect your body from unauthorized invasion. No one knows how they will react. I know [people] who have taken it and were knocked out for several days. So, anyone who wishes to be a guinea pig, I think it should be a personal decision and I should not be compelled. As long it’s just for me, and not my neighbour etc., then let me be unprotected.”
What Can the Employer Do?
Employees have a legal duty to guarantee the safety of employees and visitors to the workplace, and failure to do so may give rise to claims for negligence and occupational liability. So, what can they do?
Professor Salako’s representative Dr. David Oladele, who gave a brief insight into the nature of the virus and efforts that have been made to ensure that vaccination is administered to help us stem that tide recommended the following measures:
- Employ or assign an employee or team to keep the workplace safe,
- Ask the employees to provide personal, medical, travel and other related data or take pre-employment medical tests in relation to COVID-19 infection.
- Establish health and safety protocols including deep cleansing, wearing of face masks, temperature testing, handwashing, social distancing etc.
- Comply with NCDC guidance and recommendations in case a staff is diagnosed
- Ask returning workers may be required to undergo medical examinations provided it complies with contractual terms and HR policies.
- Provide flexible, non-punitive sick leave options (e.g., paid sick leave for employees with signs and symptoms after vaccination
- Allow time for vaccine confidence to grow.
- Ask organisations and induviduals who are respected in employee communities to help with building confidence
“The question of whether employers should make vaccination compulsory or not, has been a recurring one and it was muted because there was no vaccine yet. But now that there are vaccines, vaccination programs, and question s like this bring us right at the intersection of individual rights and public health.” – Nwankwo says.
Although there are public health benefits to taking the vaccine, panellists agree that in this ongoing conversation, the rights of the individual must be preserved. And given the mutating nature of the virus and the uncertainties surrounding the vaccine, perhaps even, preferred.