Compulsory Vaccination: balancing the obligations of the employer and the rights of the employee

Ose Okpeku

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As of 4th January 2022, 294 million cases of Covid-19 and over 5.4 deaths had been recorded globally, according to the World Health Organisation (“WHO”).

With winter and the emergence of various variants, the rate of infection has accelerated worldwide with Europe, once again, as the epicenter. In a bid to stem the tide of infection, countries are currently mulling over various approaches; for instance, the United Kingdom on the 31st December 2021, approved the use of antiviral pill, PAXLOVID, for adults.

What has become clear is that the virus is here to stay and as part of the holistic approach towards combating the spread of the virus, governments have introduced vaccine mandates, with some considering compulsory vaccination. Vaccine mandate requires you to have taken the vaccine or show proof of negative test to be able access certain services or do certain things like working, travelling, or attending a concert. Compulsory vaccination, on the other hand, mandates everyone to take vaccines except they fall within a very narrow exemption group.

As COVID-19 continues to ravage the world, vaccines will remain part of the holistic approach to managing the scourge. However, the uptake of vaccines is still very low and in Africa, according to Africa Centre for Disease Control, uptake is about 8% of the population.

Considering the poor uptake of vaccines in Africa and Nigeria in particular, when viewed against the backdrop of the overriding duty of the employer to provide a safe workplace, can employers (public and private) make vaccine compulsory for all employees?

In this piece, the writer will examine the constitutional rights of Nigerians; the legal obligations of the employer and the government to the safety of persons; and suggest a way forward.

 

Duty to Provide a Safe Work Environment

Statutorily and by common law, there is a duty on an employer to provide a safe work environment for employees. However, the extent of that duty, it can be argued, is not absolute.

Prior to the presence of the virus in Nigeria, several labour-related legislations including the Labour Act and the National Policy on Occupational Safety imposed on employers the duty to provide safe working environment for their employees.

The scope of employers’ duty became wider with the introduction of the Health Protection Regulations 2021, which makes it the duty of employers/or business owners to ensure compliance with the protocols and/or guidelines contained therein, and in fact, criminalizes failure to ensure compliance with any direction thereunder without reasonable cause.

WHO and the bulk of the medical community are aligned on certain protocols, which have been outlined and identified as capable of helping to prevent or contain the spread of the virus, one of which is the vaccine. In its publication captioned: “COVID-19 Advice for the Public: Getting Vaccinated” which was last updated on 14th July 2021, WHO states that: “Approved COVID-19 vaccines provide a high degree of protection against getting seriously ill and dying from the disease, although no vaccine is 100% protective”.

Like most bodies with similar responsibilities, the Nigeria Centre for Disease Control (“NCDC”) is of the same view and has aggressively encouraged Nigerians to embrace vaccination as an effective means of protecting themselves. Notwithstanding the Nigerian government’s alignment with the position of WHO and its widespread campaign on the effectiveness of COVID-19 vaccines, it has till date, not made any law or regulation that makes vaccination compulsory for all employees without exception or alternatives.

Thus, it can be said that the scope of the employers’ duty to provide safe environment for employees to do their contractually agreed work, except to the extent required under existing Protocols or Guidelines by persons so authorised, does not extend to compelling employees to take the Covid-19 vaccine and the position of WHO and the NCDC in relation to vaccination are at best, advisory.

What is required of any employer or business owner is to ensure that it continues to comply strictly with the Health Protection Regulations 2021 or any other COVID-19 prevention protocols as issued by authorized bodies including the Presidential Task Force, NCDC and the various State Governments across Nigeria.

 

Compulsory vaccination and Rights of Employees

 Nigerian law recognizes and validates the right of adult citizens to make their medical choices as they deem fit notwithstanding medical advice showing that a preferred choice is not in the best interest of such person.

Specifically, Section 23 of the National Health Act, 2014 admits of the right of an individual to refuse medical intervention as long as the consequence of such refusal has been explained to the individual. This perhaps explains why there is a current push to amend the Quarantine Act to give the NCDC powers to impose compulsory vaccination. This proposed amendment has met with strong opposition in the National Assembly, and it is unclear if the amendment will sail through, given constitutional provisions that protect the right of individuals to political and religious freedom (for which they cannot be discriminated against) and which from experience, form the basis for objections to the vaccine by most people.

 

In Esabunor & Anor v. Faweya & Ors (2019) LPELR – 46961(SC) and M.D.P.D.T v. Okonkwo (2001) LPELR-1856(SC), the Supreme Court affirmed the rights of all adults with mental capacity to their inalienable right to make any medical choice they may decide to make and to assume the consequences.

In Esabunor’s case, the appellant declined consent to blood transfusion for her child on religious ground. The respondents engaged the process of law under the Children and Young Persons Law of Lagos State and obtained a judicial order authorizing them to proceed with the transfusion without the appellant’s consent. The Supreme Court’s decision was based on the age of the child and the outcome would have been different if it was an adult with full mental capacity.

It follows that even if vaccines remain the most potent option to containing the spread of the virus at the workplace, an employee who refuses to be vaccinated will be entitled to have his/her choice respected. It is view of this writer that a different conclusion may be reached if the Court is convinced that failure of individuals to subject themselves to COVID-19 vaccines poses a health risk that can cause a pandemic.

 

Compulsory Vaccination versus Right to Personal Liberty

 Section 17(3)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that part of the social objectives of the government is to ensure that the “health, safety and welfare of all persons in employment are safeguarded and not endangered or abused’’. The constitution also enshrines other inalienable rights, such as the right to personal liberty, which governs a person choice on vaccination.

 Section 35 of the Constitution which provides: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community”.

Consequently, aside from the general derogation provision, there is a window under Section 35(1)e of the Constitution to derogate from the right to personal liberty for the purposes of the treatment of persons suffering from infectious or contagious disease and protection of the community.

Vaccination, with reference to infectious or contagious diseases, is a medium through which a community can be protected to prevent a spiral of the disease(s). As such, the argument can be made that the right to personal liberty, including the right to determine whether to be vaccinated, can be derogated from to protect a community from an infectious or contagious disease insofar as the derogation is in line with a procedure permitted by law.

 

Judicial Position on Mandatory Vaccination

 While COVID-19 may be novel, compulsory vaccination is not. In 1777, George Washington introduced compulsory vaccinations for soldiers under his command in the continental army.

Again in 1905, the US Supreme Court in Jacobson v. Massachusetts , ruled that vaccine mandates were legal and constitutional. In this case, the appellant had contested the legality of a legislation by the Massachusetts legislature requiring compulsory vaccination against smallpox and argued that the law infringed on his constitutional liberty. In its judgment, the Court took the view that the liberty secured by the constitution is not wholly free from restraint.

The Court held further that all persons are subject to restraints that are necessary to secure the general comfort, health and prosperity of the State and concluded that the legislation requiring inhabitants of a city to be vaccinated when necessary for public health and safety in the opinion of the Board of Heath was a good legislative intervention. The Court also noted that it would be a different case if it had been established that the compulsory vaccination would have impaired the appellant’s health or probably cause his death.

By the 1970s and 80s, about 50 states in the United States had made it compulsory for children of school age to be vaccinated against several childhood diseases. On Friday, the 7th of January 2022, the US Supreme Court heard debates regarding the Federal Government Vaccine Mandate which makes vaccination mandatory for organisations with more than 100 employees. On the 13th of January, 2022 the Supreme Court ruled that the President overstepped his authority under the Occupational Safety Health Act 1970, which protects employees from toxins and dangers in the workplace. However, each state can make its own law with respect to compulsory vaccination or testing.

There are presently no apt judicial decisions to rely on in Nigeria on the subject, however, it is the view of the writer that the position held in Jacobson’s case is still relevant today and would most certainly sway the mind of any judicial panel tasked with deciding the legality of compulsory vaccination as may be imposed by a duly enacted legislation. Indeed, we must note that Jacobson’s case aligns with Section 45 and 35 1(e) of the Nigerian Constitution which permits derogation from the fundamental rights provisions in the interest of “defence, public safety, public order, public morality or public health.”

Presently, the Government of Edo state is reportedly locked in a legal battle with citizens who have, by instituting a fundamental rights enforcement claim, challenged its decision to deny unvaccinated persons access to banks, government offices, worship, and event centres from mid-September 2021. The state government has hinged its decision on the need to protect the citizens and has declared its intention to defend its decision in Court.

The decision of the Court in the suit will determine if public policy is enough ground to make the vaccine mandatory as is being argued by the State government and whether a law by the National Assembly is necessary before such law can be valid or a state can make its own law in that regard.

Regarding the procedure permitted by Nigerian law, the question to be answered is whether it is an Act of the National Assembly or the Law of a state or both that should legislate the derogation from the right of personal liberty in the form of compulsory vaccination.

Looking at the legislative lists, control of diseases does not feature in the exclusive and concurrent legislative lists. The implication of this is that control of diseases is within the residual legislative list, and it is the states that have the power to legislate over same. Thus, an option is for the states to enact laws on compulsory vaccination in line with Section 35 (1)(e) of the Constitution.

Another option is to amend the Quarantine Act or the NCDC act making vaccination compulsory, where there is verifiable evidence to support the fact that a viral or contagious disease outbreak will lead to monumental loss of life if not controlled through vaccination.

 

Practical Options

Having established the position that compulsory vaccination needs statutory backing for such mandates to be implemented, how does the employer balance the duty to create a safe work environment with the constitutional rights of the employee?

What is certain is that the virus is here for a while and employers as well as employees will need to make compromises in achieving the goal of a safe work environment for all.  To this end therefore, the following practical options should be considered:

Either of Vaccine or PCR Test

  • Until statute or regulations specifically mandating employees to take the vaccine are issued by authorised institutions, the better approach will be to encourage employees to voluntarily take the vaccine and not to compel them so as to reduce any liability for breach of employees’ rights under the Constitution or for injury to an employee resulting from the vaccine.
  • Employees who decide against taking the vaccine may be asked to produce periodic evidence of COVID-19 PCR test from NCDC approved centres showing that they are not infected, at their own cost.
  • Employees who opt for voluntary vaccination should be allowed considerable time off work after taking the vaccine to allow the immediate effects to wear off.
  • All employees should be compelled to comply with all the protocols and/or guidelines prescribed in the Health Protection Regulations 2021. Employers should sanction employees who fail to follow the guidelines by refusing them entry into the premises whether or not they are vaccinated.

Ministerial Regulations

Pursuant to the powers of the Minister under section 86 of the Labour Act and akin to the regulations issued in South Africa, the Minister of Labour can issue regulations along the lines of compulsory vaccination regulations. However, the challenge remains that unless the regulation is expressly made applicable to employees, it will only be applicable to workers as defined under section 91 of the Labour Act.

 

 

 

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