The new normal that Covid-19 has brought about is a strange thing. Some aspects of our lives will never be the same again. The latest disruption that has come hand in hand with Covid-19 is the vaccine. While the vaccine is lauded by some as a godsend and an opportunity to return to normal life, others see it as a threat, or worse, a health risk. Many a friendship has been tested by the debate on Covid-19 vaccination, and now with vaccine roll-outs taking place across the globe, this question has now spilled over into the professional world.
It’s no secret that businesses, industries, and well, the economy, have been entirely battered by the pandemic. To work-from-home, to essential workers only, to hybrid working models, businesses have had to keep responding and innovating to challenge after challenge these past one-and-a-half years. The vaccine is a potential way out, a potential return to normal working models, normal working horse, and being able to carry out operations unrestricted. Of course, practically this will be a challenge for many reasons, like the availability of vaccines, and, importantly, who gets vaccinated and who doesn’t.
To vax or not to vax? That is indeed the question
A few weeks ago, US-based Delta airlines made something of a controversial decision, announcing that while the airline will not require that it’s current employees get vaccinated, it will however require for any person joining Delta in the future to be vaccinated, effectively placing a company-wide hiring freeze when it comes to people who are unvaccinated going forward.
Delta airlines also shared that those existing employees who choose to remain unvaccinated could likely expect to see their jobs and duties change, with the simplest example being that those employees who haven’t been vaccinated would not be allowed to fly on international routes, the logic being that international borders might require vaccination for people to enter them.
At the end of May, the New York Post reported that American employers were now allowed under federal law to require workers to get a Covid-19 vaccine before they can physically return to the workplace, although employers were required to make reasonable accommodations for workers who refused the shots due to a disability or pregnancy or for religious reasons. This information was imparted in an update issued by the Equal Employment Opportunity Commission which also encouraged employers to provide incentives for employees to get vaccinated without being coercive.
Whatever said and done, Covid-19 has impacted the world, and the workplace, to the point that employees’ medical decisions can now be influenced by their employers, at least in the US, which broaches all sorts of questions. The vaccine is, after all, an optional medical treatment. The circumstances surrounding the vaccine are exceptional because of the pandemic, but can employers really give themselves a role in whether an employee gets vaccinated? And what precedent does that set in terms of the future? Can employers play a role in their employees’ other personal decisions? And are hiring freezes against unvaccinated candidates grounds for discrimination? What about the unvaccinated at work who choose to stay unvaccinated?
What does this mean for Sri Lanka?
The above deals with workplaces and employers in the US, and in Sri Lanka, things do work differently, but how differently this will play out is the question. Brunch reached out to Attorney-at-Law and Sudath Perera Associates Partner Thidas Herath to learn more about if Sri Lankans can expect similar demands from their employers.
Herath explained that Sri Lankan labour laws do not have specific provisions that set out an employer’s rights in terms of requesting this type of testing and vaccination, with the question coming up in Sri Lanka already in the case of employers carrying out PCR tests across their companies having the right to require or even ask their employees take the PCR test. The same scenario would apply with regard to vaccination. For certain industries, like private hospitals for example, Herath explained that there can be more reason or justification for employees to be vaccinated, and in that kind of situation, with equitable consideration, employers may ask (but only ask) employees to get vaccinated. If an employee were to refuse vaccination, the employer would have no remedy except making an argument for the employee in question not following lawful instructions, insubordination, or being guilty of misconduct, but this would also be very case-specific, and only if the employer can clearly justify a need for vaccination. There is no statutory right for employers to be able to say that they cannot allow an employee to work if they are not vaccinated.
What of those employees who are unvaccinated and wish to remain as such? Herath explained that once a contract of employment is entered into, that contract cannot be altered in any way that is less favourable to the employee without the express consent of that employee. In a practical setting, this would mean that an employer couldn’t revise terms and conditions of employment unilaterally, on the basis of vaccination in a way that limited or otherwise negatively impacted the employee’s role without their consent. For example, an employee cannot be placed in a different department or branch, which is less favourable to them, without their consent because of their vaccination status, or even for any other reason.
Speaking on whether vaccination status could become grounds for discrimination at the workplace, Herath explained that workplace discrimination is not an area that is specifically regulated; the laws in place are the general laws and Article 12 of the Constitution which lays down the general rule of equality that all persons are equal before the law and are entitled to equal protection of the law and that no citizen shall be discriminated against on grounds of race, religion, language, caste, sex, political opinion, place of birth, or any such grounds. However, this may not be directly actionable when it comes to the private sector, as more factors will come into play.
It is at an employer’s discretion what opportunities they afford each employee, be that more or less opportunities than the others because of factors like employee performance, ability and so on, and in that context, Herath explained employers can in fact choose to give more opportunities to someone who is vaccinated. There are ways for other employees to challenge such behaviour, like forming a group and reporting this to a trade union or starting an industrial dispute, but at the end of the day, Herath shared that there is no statutory provision defining how employers decide to promote or offer opportunities to an employee especially where such matters are not agreed upon in a collective agreement or other similar instrument. It would be down to employees negotiating with their employees in such a situation, whether individually or as a group.
Based on the situation an employee finds themselves in, however, and this would also be very case-specific, an employee is able to go to the Labour Tribunal and argue constructive termination in cases where they feel their jobs have been adversely affected by their employers, either through their internal policies or behaviour to the point of disrcimination because they are not vaccinated.
In general, from an employer perspective, Herath advised employers to request for employees to be vaccinated if they felt that was the best course of action, but not force employees or coerce them in any way to be vaccinated. He also urged employers to make sure employees understand and accept the risks of being vaccinated in the form of a disclaimer or waiver to avoid unforeseen liability in the future. From an employee perspective, Herath emphasised that vaccination is a choice, and employers should not force their employees to be vaccinated in any way. For new recruits and hires, employers are able to ask if they are vaccinated and select only those who are vaccinated.
What are industries in Sri Lanka expecting?
With vaccination in Sri Lanka still in its early stages, it is not yet clear how Sri Lankan businesses are likely to handle the issue of vaccination.
One industry for which the question of vaccination is likely to be looming larger than most is the hotel industry. The Hotels Association of Sri Lanka (THASL) President Sanath Ukwatte shared that while it is entirely up to the employee, vaccination is a priority for the hotel industry. “Lots of hotels have been converted into intermediate care centres and quarantine centres, and the staff there are very much frontline so they need to be vaccinated for sure,” Ukwatte said, adding that Level One hotel staff (that cater strictly to foreign visitors in quarantine on arrival to Sri Lanka) mix with tourists for extended periods of time and should also be protected.
Ukwatte also shared that to his knowledge, there have been no hotel staff who have declined vaccination, adding that as employers, hotels need to protect the lives of its employees, which is why they encourage vaccination, and if any employees decline vaccination, they would be doing so in full knowledge of the risks they take being unvaccinated, both for themselves and those around them.
In terms of revising the duties of employees who are not vaccinated, Ukwatte explained that this is not something they have come across or had to deal with in the industry, though he did note that steps would be taken to minimise the risk of infection for both unvaccinated employees and unvaccinated guests, while also noting that there is limited action that can be taken in such situations since Covid-19 is now with the Sri Lankan community, and it is no longer a matter of foregn visitors bringing in Covid-19. Ukwatte shared that it is his hope that all employees in the hotel industry, as well as the citizens of the whole country in general, be vaccinated in order to minimise the spread of Covid-19.
With the pandemic leaving so many things in uncertainty, and job security more important than ever, how businesses handle vaccination at a time when employers and employees are both fragile is likely to influence how we do business for the next several years. Here’s hoping that, like with all things we as a country have been through, we get through this stage of the pandemic as well, united and together.
