The Human Rights And Anti-Discrimination Commission has received complaints and concerns about whether employers can make vaccination mandatory.
Director, Ashwin Raj says some workers have expressed grave concern about being compelled by their employers to get vaccinated as a new condition of employment.
Raj says these employees believe they must be afforded the right to make an informed choice rather than being compelled to get inoculated, acting under duress because of the fear of losing their jobs and imminence of unfair dismissals if they decide not to get jabbed.
The Director adds that it is imperative to note that the issue, however, is far more complex than employers coercing employees.
“Consideration also must be given to whether an employee no being vaccinated genuinely creates a health and safety risk that the employer cannot reasonably accommodate. So that vaccination is not used as a tool as a ground for discrimination for other pre-existing employment relation issues. To be able to justify such a view will require an increase in risk bases on new cases of community transmissions and a case by case assessment taken in each of these instances.”
Some employees, who have had their first dose of vaccination, have also contacted the Commission expressing concerns about their colleagues who have made a conscious choice not to get vaccinated and the health and safety risks that choice invariably poses not only for them in their immediate workplace environment but their families.
Raj says they raised questions about their ‘right to fair employment practices, proper working conditions and to work in a safe and healthy environment’.
He says employers, on the other hand, have also informed the Commission that they have an obligation to ensure a safe and healthy workplace environment and that it is necessary to have all its employees vaccinated to effectively curb the spread of the pandemic which has already halted economic productivity and cost jobs and livelihoods.
Raj highlights that employers have implored that they are justified in calling for mandatory vaccination for employees in certain workplaces such as factories and supermarkets that house a large number of workers, those that work with vulnerable groups such as children, the elderly, persons with disabilities and those with other underlying health conditions, high risk businesses and those working in medical facilities.
He says in the interest of the health and safety of the entire workforce, some employers have argued, that every worker must be vaccinated as a new condition of employment.
However, he says any consideration about mandatory vaccination as a precondition for employment must take cognisance of our existing laws in relation to the constitutional safeguards against freedom from cruel, degrading and inhuman treatment which includes the right to be free from forced medical treatment, rights and exceptions in relation to employment matters including the obligations of employers and employees in ensuring health and safety as provided under the ancillary legislations such as the Health and Safety at Work Act and the Employment Relations Act.
He says legally, vaccination would be considered as a medical treatment and under section 11 (3) of the Fijian Constitution, this is predicated on informed consent.
This does not however, preclude the possibility of an employer making proof of vaccination as a condition of employment of new employees.
However, the employer must ensure that these actions do not give effect to discrimination on any of the prohibited grounds prescribed under section 26 (3) of the Fijian Constitution and act in consonance with the strong and salutary constitutional safeguards under section 24 protecting the right to privacy.
Raj says as the crisis worsens, this will invariably require changes to our laws.
Furthermore, while guaranteeing the right to fair employment practices, including humane treatment and proper working conditions under section 20(1), the Fijian Constitution also places a limitation to this right under section 20(5) (a) and (b) on the grounds of public health and for the purposes of protecting the rights and freedoms of others.
The Director adds consideration must be given to whether an employee not being vaccination genuinely creates a health and safety risk that the employer cannot reasonably accommodate so that vaccination is not used as a tool for reprisal and recrimination for other pre-existing employment relations issues.
He says to justify such a view will require an increase in risk, based on new cases of community transmissions and a case-by-case assessment taken in each instance.
Raj says the position taken by WHO on vaccination is that ‘vaccines are a critical tool in the battle against COVID-19, and getting vaccinated is one of the best ways to protect yourself and others from COVID-19’.
He adds it is critical that employers take a sensitive approach to this issue and they employer must consider all reasonable alternatives to dismissal such as allowing the employee to work from home or allocate alternative duties for a specified period and make an assessment based on whether the employee works in a high-risk area which poses a real and imminent health and safety risk.
Raj suggests that information campaigns need to be intensified and sustained for the duration of the vaccination process to allow the members of the public to be able to make informed choices.
Raj adds this pandemic has halted economic productivity, accentuated existing inequalities and deepened poverty.
He says it has disproportionately impacted on our ability to enjoy a broad range of civil and political rights as a result of the measures introduced to contain the virus.
The Commission, therefore supports the states’ effort to vaccinate as many people in Fiji as possible to ensure the required herd immunity needed to protect Fiji against this deadly pandemic.
As of 8 June 2021, a total of 220,437 people in Fiji have received their first vaccine dose. A total of 4773 have received their second dose.
The Ministry of Health’s target population for COVID-19 vaccination is now 587,651.
The HRADC is encouraging all those who are yet to be vaccinated to opt to be vaccinated.