Advisory to Energy Chamber members on implementing workplace vaccination policies

The issue of workplace vaccination policies is at the forefront of many employers’ minds. Having a fully vaccinated workforce is the best way to protect all employees, customers, contractors, and other visitors to any work site. WHO approved COVID vaccines are now widely available in Trinidad & Tobago and many thousands of employees in the energy sector are now vaccinated (Energy Sector vaccination programmes). Unfortunately, there are still many people in the country who remain hesitant about being vaccinated.

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+ What's the situation around the world and in T&T?

Around the world, many employers are already implementing policies that mandate that all employees in a particular sector or particular type of work (for example in health care) must be fully vaccinated.

In Trinidad & Tobago there have been media reports that some employers, especially in high traffic restaurant and retail businesses, have mandated that unvaccinated staff should wear additional protective equipment and also submit negative Covid tests, at their expense, if they wish to be rostered for work in the future. In the energy sector some Trinidadian workers who have been rostered to work internationally, for example in Guyana, already need to be vaccinated in order to travel for work. This requirement is likely to become more prevalent as vaccination rates increase around the world.

There is an expectation in Trinidad & Tobago that at some point in the future, companies may require all or some of the contractor workers who enter their facilities to be fully vaccinated. This may be limited to contractor workers who enter into worksites where social distancing is difficult or contractors who work in remote locations. Alternatively, contractors might be expected to pay the costs associated with quarantining unvaccinated workers prior to deployment to remote locations. This advisory note is intended to help our member companies think through some of the issues with workplace vaccine policies. This advisory must not be taken as specific legal or safety advice and members are strongly advised to seek the advice of an experienced industrial relations lawyer and an occupation health specialist before taking any actions

+ Does my company need a workplace vaccination policy?

Whether or not your company needs a workplace vaccination policy will depend to a large extent on the risks of transmission that exist within your business and the way in which you work.

A company which conducts all of its work in a digital environment with all of the employees working from home and with no office facilities where people meet physically, probably will not require a workplace vaccination policy. However, for the majority of members of the Energy Chamber, employees will need to be physically present at worksites, either belonging to the company or to customers, where they will be in close proximity to other individuals.

Any policy on vaccinations needs to be based on a risk assessment of the activities that employees will be conducting and where and how they work. This risk assessment should be conducted by the company’s HSE professionals, working through the company HSE Committee where this exists, and bringing in relevant external advice where necessary.

The vaccination policy will also need to take into account the requirements that may be put in place by operator companies in the sector and/or the requirement for international travel for companies who export services, through the movement of Trinidadian workers (mode 4 service exports). There will clearly be business implications for any contractor who has employees who are either unable to enter a customer’s facility or who will have significant extra costs associated with having the employee quarantine before deployment. While health and safety considerations must always be paramount, your workplace vaccination policy will also be driven by your specific business requirements.

The vaccination policy needs to be carefully thought through and planned before any decisions are made on implementation.

+ Are mandatory vaccine policies illegal?

The law on making vaccinations mandatory remains untested in the courts, so it is at this point impossible to say how the relevant legislation would be interpreted.

The two most important pieces of legislation to be considered are the Occupational Safety and Health Act (OSHA) and the Industrial Relations Act (IRA). The OSH Act imposes a duty on employers to ensure the health and safety of all employees and a duty for an employer to assess and to remove risks associated with their workplace, as far as reasonably practicable.

This legislation would suggest that employers should consider mandatory vaccine programmes as part of their efforts to mitigate risks. However, the way that the Industrial Court has applied industrial relations principles over recent years does not appear to favour the strict application of the OSH Act to this issue. If an employee objects to the imposition of a mandatory vaccination policy, they might be able to approach a Trade Union to take the case before the Industrial Court and it would then be for to the Court to determine if the employer violated good industrial relations principles. While the outcome of such a case is yet to be tested, this could clearly be risky for an employer.

+ What can employers do to mitigate this risk?

The most important thing for employers to do is to communicate openly and frequently with their employees about the plans for a vaccination workplace policy and the risks that the policy is designed to mitigate.

If there is a recognised majority union for the workplace, the employer obviously needs to communicate with the relevant union representatives and ideally the employer and the union should communicate jointly with workers on the importance of the vaccination policy.

This communication should ideally take place prior to the rollout of a policy and should allow for a reasonable period of notice.Most of our member companies (including all STOW certified companies) will already have in place workplace HSE policies, which have been clearly articulated to all employees. Members should consider initiating their communications with employees starting with the company HSE policy and explaining their duty to all employees, visitors, and the wider community to protect their health and safety.

It is important to clearly lay-out the ethical basis for the approach to vaccinations being proposed in the workplace. Employees need to be given a chance to understand and question the planned vaccination policies. They need to be given the opportunity to seek clarification on any changes to company policies, especially if these could be seen as affecting their terms and conditions of employment. For unionised workplaces, it is obviously crucial that this consultation takes place with the relevant union officials. Consultation does not mean that employees and/or unions can veto any policy change, however achieving agreement is the safest course to mitigate against legal risk.

Employers must be able to show how the employees were consulted, questions that were addressed and that reasonable changes were made, on the basis of employees’ legitimate feedback. This should all be carefully documented and the records of the consultations carefully archived.

+ How can employers address vaccine hesitancy?

Given the prevalent levels of vaccine hesitancy, and the spread of disinformation about vaccines mainly through social media, there may well be employees within your organisation who are hesitant about being vaccinated and some who may, unfortunately, outright refuse to be vaccinated.

Employers need to communicate regularly, frequently and comprehensively about vaccinations with their workers. In unionised environments it would be very powerful if unions leaders joined with the company leadership in communicating this message (see Ansa McAl video).

Employers should ensure that they stress that vaccinations are vital for the good health of the individual employees and their colleagues, families, and the wider community.

One on one conversations with individuals will always be important, so it is vital that managers and supervisors are part of the communications plan on vaccines. If you have managers and supervisors who are themselves hesitant about vaccinations it is important to know this and mitigate their potential negative communications with other employees. It is important to always be open and transparent and to actively listen to the concerns of employees.

Some member companies have brought in medical experts to communicate with employees on vaccines and they report that this has generally been a successful strategy to increase confidence in vaccinations. It is important that companies collect information on attitudes to vaccines within their employees, in order to know the scale of the problem of vaccine hesitancy. This needs to be regularly updated and the vaccination status of employees within your company should be tracked, while at the same time respecting individual’s rights to confidentiality.

+ Can an employer remove safety requirements for vaccinated workers and leave them in place for un-vaccinated workers?

Requirements for social distancing, mask wearing, quarantine and regular testing should always be based on a risk assessment and justified through the company health and safety policy.

As part of a risk assessment companies could consider removing some requirements for vaccinated workers and leaving others in place for unvaccinated workers. Measures like double mask wearing, face shields or additional testing, should be kept in place as part of reducing the risk of transmission, rather than a punitive measure to “punish” unvaccinated workers.

Additional testing requirements could be justified, but employees will need to ensure that they are compliant with the OSH Act if they seek to impose the costs of additional testing on existing employees.

+ Should there be exemptions to a mandatory vaccination policy?

There are a small minority of people who medical doctors advise should not be vaccinated based on pre-existing medical conditions.

These individuals must be exempted from mandatory vaccine policies, but this must be done in close consultation with medical professionals.

In some cases, the pre-existing conditions will mean that the individuals are at great risk from Covid and therefore decisions will need to be taken about whether the individual can safely be at work during a pandemic.

Companies should use their existing fit to work procedures in these cases and take appropriate decisions based on existing HR policies. In unionised companies, this needs to be carried out in keeping with the relevant collective agreements. Companies should also seek to ensure that any policy is non-discriminatory, in keeping with the provisions of the Equal Opportunities Act (EOA).

Current guidance in Trinidad & Tobago is that pregnant women should not receive the vaccinations. Special measures will therefore need to be put in place for any pregnant employee, and employers should also ensure that they remain compliant with both the OSH Act and the Maternity Protection Act.

+ Can an employer insist that contractors or visitors entering a workplace be vaccinated?

There is no legal restriction on someone who operates a facility imposing the requirement that contractors or visitors be vaccinated before entering a worksite, or that unvaccinated visitors or contractors must take additional safety measures or be able to provide test results.

Any requirements for visitors should be clearly communicated before people arrive at the facility and, like any other safety measure, applied comprehensively and consistently.

The only caution would be in the case where contractor workers might be deemed to be employees, in which case the employer should utilise the employee workplace vaccination policy, in order to mitigate the risk of a future industrial relations case.

+ What if everyone in the company is already vaccinated?

In some cases, all employees in a company have already been vaccinated. In these cases, the employer will probably have few difficulties in implementing a mandatory vaccination policy if they desire. The employer should, however, still ensure that this policy is written and clearly communicated to all employees and captured in the relevant terms and conditions of employment, so that it also applies to new hires.