Prominent Caribbean Law Professor, Rose-Marie Belle Antoine on Thursday said COVID-19 vaccination could be made compulsory without violating human rights, constitution and the law.
“It’s a fairly easy sell for me to accept that mandatory vaccination is constitutionally legitimate and we have good precedent for it since we already have laws mandating vaccines for children’s entry into schools,” said Ms. Belle Antoine, the Dean of the Faculty of Law at the University of the West Indies’ campus in Trinidad.
Delivering a presentation to a discussion on “Mandatory Vaccination” that was organised by the “Organization of Commonwealth Caribbean Bar Association and the Organisation of Eastern Caribbean States Bar Association, she said “compulsory requirement for the COVID-19 vaccine is justifiable in law” constitutionally or in the private sector.
At the same time, she said there are social and industrial relations implications which could make compulsory vaccination legal but not desirable. Professor Bell Antoine said the key is to take the route that poses the least hurdle for human rights such as those dealing with socioeconomic considerations, and the right to health, safety and life, based on reasonableness based on the constitution or private action or labour laws as well as proportionality. Significantly, several of the constitutions specify public health… and even going further, infectious diseases as acceptable rationales for limiting rights,” the Law Professor said. In that regard, she believed that employers would be persuaded to follow the constitutional provisions.
Responding to the view in some circles that the law does not provide for mandatory vaccination, Professor Belle Antoine said when the law is silent the assumption is that it is permissible unless the court rules otherwise.
Noting that the right to liberty can be abridged when there is an infectious contagious disease, Professor Belle Antoine said the trend was to lean in favour of ensuring public health rather than prioritise individual rights. She said already rights to free movement had been curtailed by Trinidad and Tobago by preventing citizens from returning home due to the pandemic, states of emergency and the wearing of masks. Professor Belle Antoine recommended that rights be balanced for the greater good by examining. That, she said, could be done by examining the levels of risks facing those who are designated frontline workers compared to those who are not as well as the availability of other methods such as personal protective equipment, social distancing and the wearing of masks. “If science shows that the vaccine is not going to be so effective, then limiting rights may not be justifiable,” she said.
The Law Professor argued that employers could decide on compulsory vaccination based on the risk that workers face at their workplaces because of the need to ensure workers’ health and safety and those of others. “High-risk environment will make it more reasonable to compel vaccines and a low-risk workplace, maybe social distancing and homework and so on will be sufficient and so it will be less reasonable,” she said.
The Professor said although amending the terms and conditions of work should not be encouraged, there are exceptional circumstances such as health and safety that could justify employers making the necessary changes, “I disagree that requiring a vaccine will be an unlawful, unilateral change in terms and conditions of employment because health and safety is also a contractual term and that will trump others and, of course, we know that in exceptional circumstances, you can change employment terms and conditions although we don’t encourage it so in that sense where the employer seeks to honour that duty, it can’t be said that terms and conditions are being altered,” said the Labour Law expert. Professor Belle Antoine said employers could be held to be “irresponsible or negligent” for failing to take steps to protect the workers.
Another option could be “soft law” and an “illusion of choice” by giving persons the option of, for example, being unable to board flights of they are not vaccinated against the coronavirus.
Belize lists a number of workers, including teachers, as frontline workers who are encouraged be vaccinated against COVID-19 vaccine or take a weekly test. If they do not, they would not be allowed to work and would be considered absent from duty.