Employers in certain industries such as social care would likely be within their legal rights to insist that their workers are vaccinated against COVID-19, according to analysis from Cayman Islands law firm HSM.
It would also be legally open to the government to insist on proof of vaccination as a condition of new work permits, according to employment and immigration law experts from the George Town firm.
With vaccination rates in Cayman dropping and other jurisdictions beginning to look at measures to compel people to take the jab, questions abound over what options are open to employers and government as they seek to hit a safe threshold for reopening.
HSM partner Kerrie Cox outlined some of the key considerations around vaccinations and Cayman’s employment law in an analysis for the firm, shared with the Cayman Compass.
And Nick Joseph, another partner at the firm, specialising in immigration, gave us his views on the legality of making immunisation a condition of employment for expatriates.
Here we summarise some of the key questions and answers on the issue.
Could businesses in Cayman compel their workers to get vaccinated?
While he argues that the issue is complex and would need to be evaluated on a case-by-case basis, Cox suggests the principle of mandating vaccinations for employees in certain sectors is defensible under Cayman Islands law.
“A direction to take the vaccine could be regarded as a ‘reasonable instruction’ on the part of the employer, depending on the individual circumstances of the business,” he wrote.
Cox cited social care as one area where employers could reasonably argue that instructing employees to get vaccinated was necessary for the protection of vulnerable people.
“Conversely, employers in other business sectors will not have the same strong rationale for mandating staff inoculation,” Cox wrote.
The firm advises clear communication and engagement with staff for any business contemplating mandatory inoculation policies.
Any such policy would have to ensure it did not discriminate against people who could not take the jab, for example, pregnant women or those with a health condition that makes the vaccine more dangerous.
Could someone be fired for not taking the vaccine?
Although he argues that in some occupations, particularly those concerned with health, an employer mandating an employee to be vaccinated could be regarded as a reasonable instruction, Cox suggests that each case must be taken on its merits and any dismissal process must be fair and proportionate.
“Only an employee who unreasonably refuses to be vaccinated could be fairly dismissed,” he wrote.
“There must be an opportunity for the employee to set out the basis for their refusal and the employer will need to consider those reasons in the context of its business.”
It also raises questions over the accommodation of any ‘exceptions’, such as pregnant workers or those cannot take the vaccine due to a health condition.
Cox cautions that any employer seeking to dismiss a worker who refuses to get vaccinated must show they have given careful thought to alternatives, including reallocating the employee to a different role where being unvaccinated would not be a detriment to the business.
Could an employer be liable if a worker gets sick?
In his analysis, Cox warns that employers have a legal obligation to ensure the health, safety and welfare of employees at work.
Though he argues that the vaccine should be considered part of a workforce COVID-19 risk-assessment measure to guard against the threat of contracting the virus, he acknowledges a flip side for employers.
“Mandating the vaccine could give rise to claims from employees who suffer an adverse reaction to the vaccine if a link can be established, so medical advice for employers may be required,” he wrote.
What about data protection?
Cox cites data protection legislation as a complicating factor for businesses seeking to insist their employees are vaccinated.
Presumably, an employer insisting on wholesale employee vaccination would require corresponding ‘evidence’ from an employee.
Therefore, employers would have to carefully consider why they need evidence of vaccination, and whether it is appropriate for their business.
“The employer must consider not only the reasons for requiring the data but also issues like how it will be held securely, who will have access, and whether it is appropriate to hold more than a simple ‘yes’ or ‘no’,” according to Cox.
Can government mandate vaccination for work permit holders?
Nick Joseph, an immigration specialist with HSM, believes it would likely be permissible for the Cayman Islands government to take this action, as the Turks and Caicos Islands has already done.
He told the Compass, “Work permit holders have no absolute right to a renewal of their work permits, and it is open to the authorities to place such limitations on the renewal of those permits as they determine, providing that such limitations are lawful, reasonable, proportionate, and procedurally fair.
“It is without doubt open to the authorities to place a vaccination requirement on any person, not already resident in the Cayman Islands, as a condition of the grant of any new work permit.”
He said the question of whether such a move was reasonable, proportionate and fair was more complex, and government would need to ensure the same rules were applied for civil servants and private sector employees if it took that kind of action.
He added that any attempt to mandate vaccination across any sector of the community would have to allow for exceptional circumstances and exemptions.
What about PR holders?
Joseph believes it would not be lawful for government to mandate vaccination for permanent residents or Caymanians.
“Such persons already have a right to be settled here – and no government attempt to require vaccination of them (as a condition of them simply remaining here) would be lawful,” he wrote.
That does not necessarily mean, Joseph suggests, that no employer could mandate vaccination of all staff as a condition of ongoing employment – including Caymanians and Permanent Residents.
He cites airline crew and hotel staff among possible categories of workers where employers might be able to argue it was reasonable to insist on vaccination.
“It should be remembered that the Constitutional protections enshrined in the Bill of Rights create limitations on the ability of Government to place limitations on the people,” Joseph wrote in an emailed response to questions from the Compass.
“The relationship between employers and employees is the subject of more nuanced considerations – and any attempts to require vaccination would (whilst in theory being permissible) need to be considered on a case by case basis.”
So what is the legal advice?
While HSM suggests there are circumstances where employers could mandate vaccination, the lawyers believe the issue is complex and should be treated carefully.
“The most practical approach would be for employers to engage with staff and encourage, perhaps writing a non-contractual policy outlining the benefits of taking the vaccine and assisting in any arrangements for staff to be immunized,” Cox wrote. “Any employees who refuse the vaccine could be met privately to explain the benefits again, but employers should be cautioned about forcing or disciplining staff who refuse.”