On the 2nd of March, 2021, Nigeria received nearly 4 million doses of the Oxford-AstraZeneca COVID-19 vaccine (the 'Vaccine') manufactured by the Serum Institute of India ('SII'). The Vaccine was shipped to Nigeria via the COVAX Facility, a partnership between the Coalition for Epidemic Preparedness Innovations ('CEPI'), the Global Alliance for Vaccines and Immunization ('GAVI'), the United Nations International Children's Emergency Fund ('UNICEF') and the World Health Organisation ('WHO').1 The arrival of the Vaccine will enable the National Primary Health Care Development Agency ('NPHCDA') to commence the vaccination of Nigerians in priority groups, starting with the frontline health care workers and strategic people in leadership positions and subsequently to the elderly ones and other Nigerians. According to Tolu Ogunlesi, 2 the Special Assistant to the President on Digital and New media, Nigeria's Vaccine doses will be rolled out in four phases.
With the arrival of the Vaccine in Nigeria, hope of normalcy at workplace is rising; however, certain fundamental questions relating to this must be addressed. Can employers legally subject their employees to compulsory vaccination? And what happens if certain employees refuse to take the Vaccine for reasons best known to them? These questions are discussed below.
CAN EMPLOYERS MANDATE THEIR EMPLOYEES TO BE VACCINATED IN NIGERIA?
Generally, employers have an obligation to provide a safe working environment and to take measures to ensure the safety of their workers.3 In fulfilling this obligation with specific reference to COVID-19, employers must put in place health and safety protocols such as deep cleaning, disinfecting common places, ensuring provision of facilities for hand washing and sanitising, wearing of masks, social distancing, amongst others. Employees equally have a corresponding obligation to co-operate with their employers in maintaining a safe and healthy working environment. However, does this employers' obligation to ensure the safety of their employees extend to making it compulsory for them to be vaccinated without their consent?
There is no enabling law in Nigeria which gives employers the power to mandate their employees to take the Vaccine. There has equally been no directive or circular either from the Federal Government or any of its agencies with respect to compulsory vaccination of employees in different sectors of the economy and by extension, of the citizens of Nigeria. The issued circular merely provides that the first phase of COVID-19 vaccination targets frontline health workers, laboratory staff, COVID-19 rapid response team, the Police, strategic leaders, among others.
Similarly, political leaders in most countries of the world are steering clear of mandating vaccination. In the United States of America, President Joe Biden confirmed that vaccinations wouldn't be mandatory. In the United Kingdom, Prime Minister Boris Johnson has explicitly ruled out domestic 'Vaccine passports'.4 In Germany, Minister of Health, Jens Spahn, has stated that there will be no compulsory vaccination during this pandemic.
Given that there is no enabling law which employers can make a direct reference point to, as authorising them to enforce compulsory vaccination, does this put an end to the matter? Apart from legislation, one of the fundamental things governing employer-employee relationship is the employment contract and several workplace rules, practices and code of conduct which have been incorporated into the employment contract. Since parties are bound by express terms in their contract, if there is a provision in a contract of employment which gives an employer the power to develop and enforce such policies and practices as are necessary to fulfil its obligations under the law in ensuring health and safety at work place, an argument can be made that such provision can be construed as giving the employer the power to mandate its employees to be vaccinated.
Furthermore, some provisions of the Employees' Compensation Act, 2010 (the 'Act') are of relevant considerations. The Act defines an occupational disease as a disease that is contracted in the course of an employment or due to exposure to risk factors at work and includes viruses.5 From this definition, it is clear that COVID-19 constitutes an occupational disease under the Act and an employee who suffers disabling occupational diseases/death, arising out of or in the course of employment, where reasonable care is not undertaken by the employer, is entitled to compensation.6 An argument can also be made that to act as a shield from claims of negligence and occupational liability and observe its obligations as stated above, employers can mandate their employees to be vaccinated in Nigeria.
However, the two propositions above which support the fact that employers can mandate their employees to be vaccinated seem to run contrary to the right of informed consent to medical treatment7 and certain principles of fundamental human rights as entrenched in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). However, this principle of informed consent can be deemed granted if vaccination is included in the terms of agreement, either prior to the employment or as a result of the variation of the terms during the employment.
WHAT OPTIONS ARE AVAILABLE TO AN EMPLOYER IF AN EMPLOYEE REFUSES TO BE VACCINATED?
Employers are advised to educate their employees on the benefits of taking the Vaccine which will generally provide a safe working environment for all employees and reduce employees' risk of contracting COVID-19. However, where an employee refuses to take the Vaccine and there is legislation or regulation issued mandating employees to obtain approved Vaccines, failure to comply could give rise to liabilities that could be enforced. Furthermore, if the employee has a contractual obligation to comply with all applicable health and safety measures, including taking of vaccine where necessary, failure to obtain the vaccine will be a breach and entitle the employer to terminate the employment contract.
There is no enabling law in Nigeria which empowers employers to insist that their employees should be vaccinated. As a matter of fact, the current position in Nigeria is that unless the nature of your job requires that you must be vaccinated, like health care workers, vaccination is not mandatory. In other words, whether or not a person is vaccinated is a matter of his choice and not as a result of coercion. Thus, for an employer to mandate that employees take Vaccines, it must be supported either by legislation, a directive by an authorized agency or the terms of employment. Employers are advised to review their contracts of employment and or Human Resources policies to require employees to comply with such instructions.
1 'COVID-19 vaccines shipped by COVAX arrive in Nigeria' <<a href="https://www.unicef.org/nigeria/press-releases/covid-19-vaccines-shipped-covax-arrive-nigeria" target="_blank"> https://www.unicef.org/nigeria/press-releases/covid-19-vaccines-shipped-covax-arrive-nigeria> accessed 20 March, 2021.
2 P. Adepoju, 'Nigeria receives COVID-19 vaccines amid confusion over rollout' <<a href="https://www.devex.com/news/nigeria-receives-covid-19-vaccines-amid-confusion-over-rollout-99298" target="_blank"> https://www.devex.com/news/nigeria-receives-covid-19-vaccines-amid-confusion-over-rollout-99298> accessed 20 March, 2021.
3 Part II of the Factories Act; Iyere v. Bendel Feed and Flour Mills Limited (2008) LPELR SC.309/2002
4 Vaccine passports are markers of proof needed for people to enter commercial establishments like pubs.
5 The Employees' Compensation Act, 2010, s 73
6 Ibid., s 31(d)
7 Rule 19 Part A of the Code of Medical Ethics of Nigeria and Section 23 of the National Health Act 2004.
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