The outbreak of COVID-19 in Cayman and associated quarantine requirements have created a new wave of headaches for businesses and their employees.
The Cayman Islands is navigating new territory in labour relations, when it comes to mandatory vaccinations, testing policies and sick leave for locked-down workers.
We enlisted the help of HSM lawyers Nick Joseph and Alastair David and consulted the Chamber of Commerce and Ministry of Labour training seminar, to answer some of the key questions.
Can employers enforce mandatory vaccination policies?
Several employers in Cayman have introduced mandatory vaccination policies for their staff, but would this stand up to legal scrutiny?
Wesley Howell, Chief Officer in the Ministry of Labour, reassured business owners this week that such policies – with caveats for medical exemptions – are likely to be okay in most cases as long as they are enforced fairly and consistently.
He said most businesses are offering alternatives such as more frequent testing for those who are unwilling to get vaccinated.
While he agrees that mandatory vaccination policies may be enforceable by some organisations, Nick Joseph, partner with HSM, said there are grey areas.
He said, “This is an issue employers have been grappling with since the introduction of vaccines into the Cayman Islands. The reality is that there can be no ‘one size, fits all policy’. Any policy has to be tailored to the needs of the business and the individual circumstances of both the business and their employees.”
A key caveat of the Labour Law is that employers must “act reasonably” and any decision to terminate must pass that test as well as others set out in the legislation.
“If you are a nurse on a cancer ward treating immunocompromised patients every day, it is more likely that your employer requiring you to be vaccinated will be considered to be reasonable than if you are an IT person working from your sofa,” he said.
Can workers be dismissed for not getting vaccinated?
The point of dismissal is effectively where the rubber hits the road in terms of the legality of mandatory vaccination policies.
While the policy may be considered reasonable, employers may still face claims for damages if a worker is fired for failure to comply.
The Department of Labour and Pensions urges caution when taking disciplinary action, suggesting this is never without legal risk.
Joseph, of HSM, said there is potential for a decision to dismiss on the grounds of vaccination status to be contested both before a Labour Tribunal and before the Grand Court for breach of contract.
He said businesses that dismissed employees for being unvaccinated had to be aware of the ‘commercial risk’ knowing that their decision could be scrutinised by a Labour Tribunal or a court.
Depending on the circumstances, if the tribunal was to find the dismissal “unfair” they could be required to pay both severance pay and compensation for unfair dismissal by the Labour Tribunal or if the court found the dismissal “wrongful” they may also face an award for damages.
What about the Constitution and human rights concerns?
The Bill of Rights, which guarantees freedom from discrimination, works vertically rather than horizontally.
In other words it applies to the relationship between government and individuals, rather than to the relationship between two individuals or between businesses and their workers. So it is unlikely that the Bill of Rights can be used to assist an employee who does not wish to comply with a mandatory vaccination policy.
The Labour Act, the primary legislation that governs Labour relations, also contains protections for employees against discrimination on a variety of grounds including disability and “political belief”.
Alastair David, also of HSM, believes the Labour Act provides some protection for workers with a “disability” who decline to abide by a mandatory vaccination policy for medical reasons, provided it was clear that their disability was linked to their inability to take the vaccine.
He believes it is unlikely that a mere “anti-COVID vax stance” would be considered a “political belief” such that it would amount to discrimination to insist that an employee with a with “anti COVID vax” views or beliefs take a vaccine.
Can businesses deny entry to unvaccinated people/contractors?
Some businesses in Cayman have insisted that contractors – for example cleaning crews or equipment repair technicians – are vaccinated.
Joseph believes that this is permissible.
He said, “Every person’s home, or office, is his or her castle. You can set the criteria for entry into a private premises.”
He suggests any business that does so might be wise to make adjustments for disabled people who are unable to be vaccinated for medical reasons.
Do I have to tell my employer if I have COVID/how is that information shared?
COVID-19 is a legally reportable disease under the Public Health Law. That means, if you contract the virus, it is an offence not to report it to health authorities and to comply with quarantine guidelines. In most situations that is likely to necessitate informing your employer.
While employers have to be mindful of Data Protection legislation, there may be a duty to inform staff, if another employee is known to be positive and those staff have been a close contact. The collection of data on staff vaccination status is also subject to the Data Protection Act.
The Ombudsman advises businesses to produce a written policy stating how employees’ vaccination checks will be done, and for what purpose.
“If you cannot specify your use for this information and are recording it ‘just in case’, or if you can achieve your goal without collecting this data, it is unlikely that you will be able to justify it under the Act,” Ombudsman Sandy Hermiston said in official guidance issued last month.
Can employees refuse to comply with mandatory testing?
Many large employers in Cayman, including schools and many government agencies, now have mandatory lateral flow testing policies.
Joseph believes these are likely permissible in a lot of cases but cautions that there is no settled case law on the issue.
“While it maybe said that the rapid tests are fairly simple and unintrusive, if a refusal to take such a test that is mandated leads to a dismissal, the employer should be aware of the risk of a claim for unfair dismissal or wrongful dismissal.
There have been no “test” cases yet before the Labour Tribunal or courts so employers should act with caution.”
If you are unable to work because of COVID quarantine, will you still get paid?
There is no legal obligation for employers to pay any more than the statutory number of sick days agreed in the employment contract.
There have been cases when workers have exhausted their sick days and have been forced to quarantine because they have contracted COVID, or others in their household have. In some cases, employers have continued to pay their wages, but this is entirely voluntary.
Speaking at a Chamber of Commerce information seminar, Japhia Loval Linwood, of the Department of Labour and Pensions, said there is nothing in the Labour Act that addresses the current situation and no COVID-related amendments had been made.
She said there was no legal basis to ask employers to allow flexible working arrangements or to grant additional sick days. The department advises negotiation and use of vacation days, where possible.
Joseph added, “There is nothing in law that can compel an employer to pay an employee for work they are not performing. If the employee is not working, the fundamental basis of the relationship breaks down”.
“There are big important questions about how society functions in those circumstances, how does the person put food on the table? But those are not primarily for the employer to answer. There’s a moral responsibility, perhaps, but not a legal one.”
Could someone be dismissed for prolonged absence?
Although, the Labour Act permits termination for absenteeism, this is based on the Act deeming such a situation “misconduct”. Deeming such a situation “misconduct” – if the absence is based on a legal requirement to quarantine – means a Labour Tribunal is unlikely to consider such a dismissal as “fair” or the actions of the employer to be “reasonable”.
If an employer compels you to get vaccinated and you become sick as a result of side-effects are they legally or financially responsible?
According to Howell, the employer would not bear any legal or financial responsibility if one of their staff suffered side-effects from a vaccine they had felt compelled to take in order to keep their job.
He said everyone who took the vaccine signs a consent form.
Government does provide for some level of care for anyone who is ill, he said, but the onus is not on the employer if there are ill-effects from a vaccine.
“Each person has to sign that consent form,” he said.
Have any work permit renewals been refused because of the employee being unvaccinated?
Following the introduction of amendments to immigration legislation in October, vaccination against COVID-19 is now one of the conditions for work permit renewals as well as new permits and permanent residency applications.
Given the backlog of permit applications, it appears unlikely, says Joseph, that many applications have been processed under the new regime as yet.
When that does happen, he believes there will inevitably be a test case challenging the legislation.
“We expect that to happen at some point,” he said.
One key concern about the current law is that it creates a different standard for expatriates in the private sector, compared to those working for government, who do not require work permits.
“We have a regrettable situation where expats working for HSM Chambers are required to be vaccinated but expats working for the government legal department do not,” said Joseph.
Deputy Governor Franz Manderson has previously indicated this will be addressed through a similar requirement for non-Caymanian civil servants, but this has not happened as yet.
Because permission to work in Cayman is an issue between the government and the individual, the Bill of Rights does come into play and there is a strong argument, says David, that the current regime is discriminatory and the requirement to be vaccinated in the Immigration Law may be challengeable by an affected individual based on rights that the individual has under the Bill of Rights.
While a mandatory vaccination policy for expats on government contracts would deal with some of the legal concerns it wouldn’t eradicate them entirely.
Further legal questions could be raised about the different treatment of expats and Caymanians, he said.
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