Should COVID-19 vaccination be made mandatory

By Ruben Morales Iglesias: What do you think? Should COVID-19 vaccines be made mandatory?

Professor Rose-Marie Belle Antoine, dean of the Faculty of Law and professor of labour law and financial law at UWI, St. Augustine wrote a commentary for the Trinidad and Tobago Newsday in which she says the law affords governments to take such measures in the interest of public health.

Basically, Professor Antoine says it’s a matter of public health versus individual freedom.

She makes the point that Italy already instituted mandatory COVID-19 vaccination and in the Caribbean region Grenada is leaning towards it.

She says it’s “not a clear-cut legal question and there are good arguments on both sides. There is no law, precedent or policy which governs the matter at present.”

Professor Antoine says the matter involves labour law, public health and human-rights issues and that the majority interest would likely prevail.

“Mandatory vaccination is, of course, an abrogation of individual rights, but it must be balanced against the collective rights of others,” she points out.

She reviews Caribbean legislation quoting the constitutions of Trinidad and Tobago, Jamaica, Guyana, Barbados, Grenada, and St Lucia and points out that “several Caribbean constitutions expressly provide avenues for the state to limit individual rights where public health is at risk as is reasonably required, and this may justify mandatory vaccines.”

According to her commentary, the constitutions of Grenada, St Lucia and Barbados specifically make the “right to ‘personal liberty’ … “subject to the state taking measures to prevent the spread of ‘infectious or contagious disease.”

The reason why Grenada is leaning towards making COVID-19 vaccination mandatory:

“This environment of a pandemic with fast-growing covid19 rates and deaths, the trend is to lean in favour of public-health imperatives and not prioritize individual rights. This is the reason, eg, why the courts have not upheld challenges by people who were locked out of their own countries against their individual rights of citizenship,” Professor Antoine says.

She also makes reference to previous mandatory vaccinations as in the case of compulsory national childhood vaccinations programs against hepatitis supported by the European Court of Human Rights.

She draws similarities between the European Union Convention and Caribbean constitutions saying that what applies there can apply here.

She backs the idea of mandatory COVID-19 vaccination with Trinidad and Tobago and other Caribbean countries already having mandatory vaccination for children entering school.

Professor Antoine also points out that where the governments are reluctant to impose mandatory vaccinations, employers, institutions and hospitals can do so, because with the exception of Jamaica, “human-rights considerations do not apply to non-state actors like employers etc, since our constitutions only protect against human-rights abuses by the state. However, other principles of law, such as administrative and labour law, will be pertinent in the absence of legislation.”

“There are already many requirements that we accept despite there being no legislation to regulate it. For example, most workplaces, universities, etc, already have much latitude in terms of entry and require medicals before hire, or admission, despite there being no law.

“Indeed, for that matter, no law requires employers to mandate specific qualifications, but they do! Similarly, many health-care institutions already require staff to be vaccinated for known contagious diseases.”

Professor Antoine says employers can require mandatory vaccination in the best interest of other employees and the people they interact with.

“The real issue is whether such a requirement for mandatory vaccination would be reasonable.

“Given the constitutional leeway in favour of public-health imperatives described above, I suggest that employers could justify a requirement in a pandemic context, at minimum where the workplace is a high-risk environment, such as health care, or essential services.”

She also makes reference to mandatory vaccination required for international travel.

“Analogies with immigration requirements mandating yellow fever and other vaccines, or airlines and universities requiring covid19 vaccines before travel or admission, also point to the likelihood that such compulsion may not be unreasonable. In fact, there is already a de-facto mandatory requirement in existence in several sectors.”

Professor Antoine makes reference to the president of the Industrial Court, who in a newspaper article, said that “imposing such a requirement could breach contractual terms and conditions of work.”

She counters saying that “while I agree that employers cannot normally unilaterally change employee terms and conditions, there are exceptional circumstances which permit it, such as where the work environment changes fundamentally and modification is needed to protect the enterprise itself.”

She says that conversely, if employers do not take measures, they “can be held to task for failing to take steps to protect the worker and co-workers. This would be part of the evaluation of what is reasonable and fair. In a high-risk environment, it may be irresponsible and even negligent to permit employees to work without a vaccine.”

She cautions that “in assessing reasonableness, whether in relation to the private sector or the state, there must also be legitimate exemptions. Religious objection is relevant, as would be medically sound health risks. In such circumstances stringent safety requirements (PPE, etc) would have to be substituted.”

She closes saying that while “the pandemic rages on, there may be good grounds for imposing mandatory vaccination, at minimum for particularly high-risk workers, in the public interest.”

But points out that “all of the above is moot if we cannot obtain sufficient vaccines for the population!”

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