Ghana: COVID 19: Can Employees Be Compelled To Take COVID 19 Vaccine?

COVID 19 virus took the world by surprise. It started as small China problem and subsequently to become a global pandemic – the entire world problem. The net effect has been that national governments have to impose strict measures including lockdowns, social distancing, wearing of face masks, washing of hands and others to minimize the catastrophic effect of it.

Notwithstanding the above, lives are been lost daily and infection rates are still at its peak. Businesses has also had their fair share of the catastrophic effect of the pandemic. Businesses have been folded up, some struggling and others working on rotation basis.

Scientist advised that the surest way to get pandemic under control is to get all and sundry vaccinated to minimize the spread, avoid severe illness and death. Unfortunately hand full of covid 19 vaccines have been approved, by relevant bodies, to be safe and effective to fight the covid. 

Recently Ghana's Government in an effort to minimize and control the various managed to secure about 600,000 doses of the AstraZeneca Vaccine for the country. The doses imported were not enough to vaccinate the entire population, however, at some point more vaccines will be approved and there will be enough vaccines for all persons who are willing to be vaccinated.

Notwithstanding the obvious benefits of the vaccines, there is still high rate of potential vaccination hesitancy. Several people both young and old have decided not to take the vaccination. Some attribute it to religious beliefs; trust in the efficacy of the vaccine and others conspiracy theories.

So far there is no law or policy in Ghana that makes the vaccination mandatory. However some employers in their quest to return business back to normal and also to complying with their obligations under the 1992 constitution and the Labour law may make policies and decisions that will compel employees to take the vaccine.

We will discuss whether such measure or policies can be lawful?

OBLIGATION ON EMPLOYERS TO MAKE WORK PLACE SAFE AND HEALTHY

Employers who may want to make Covid 19 vaccination mandatory at their work places will argue that by the combine effect of Article 24(1) of the 1992 constitution and Sections 10(a) and 188(1) impose a duty on employers to ensure that every worker employed by it works under satisfactory, safe and healthy conditions.

Creating a satisfactory, safe and healthy conditions include taking reasonable and practical steps to minimize or prevention the spread of Covid 19 virus at the work place. And one of the reasonable and practical steps is making Covid 19 vaccination mandatory. 

EMPLOYEES RIGHT TO REJECT VACCINATION

Whiles employers have to right to make Covid 19 policy mandatory, the Employees on the other hand also have the right to refuse vaccination. Employees have a fundamental human right which is guaranteed under the constitution to refuse or accept any medication of any sort. Therefore a person cannot be compelled without their consent to undergo medical treatment, including vaccination. On that basis, employees can also reject any attempt to compel them to undergo vaccination treatment.

BALANCING RIGHT

The rights of the employer and the employees indicated above, none of it can be classified as an absolute right. Therefore in the event they contradicts none will automatically takes precedence over the other. This means any potential mandatory policy cannot automatically takes precedence over an individual fundamental right and freedom to decide whether or not to take the medication.

When such event happens, employers to avoid any potential liability, should be prepared to justify such policy.  The employer should be prepared to justified that aside the mandatory requirement there were no practical alternatives or mechanisms that was sufficient enough to meet their obligations.

Another justification may be that the nature of the work employees were undertaking is such that it has become necessary that they undergo the vaccination exercise. In a decided case in Canada, specifically, employers engaged in the provision of health care and residential care services, especially those catering to the elderly or immunocompromised, it was found that it was justified in temporarily removing employees who refuse to be vaccinated.

The policy must also be connected to the employer's legitimate business interest. A mandatory policy that protects employees, client and patient health and safety have been held to be legitimate business interest in other jurisdiction.

WHAT EMPLOYERS MUST DO

Notwithstanding that Employers may have a legitimate right to impose mandatory vaccination, it is highly recommended that they encourage voluntary vaccination. Employers can also introduce incentives to staff to encourage them to vaccinate.

Further most of the vaccine hesitancy are due to little information or misinformation about the vaccination. Employers can seek help of health professionals to educate their employees about the safety and efficacy of the vaccine to alley any fears they might harbor.

Notwithstanding the above, if it becomes necessary that the policy has to be implemented, the employer should ensure that the policy does not contradict with the existing employment agreement or collective agreement.

The policy should also not be unreasonable. Last but not the least the policy should be clear and unequivocal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.