Compelling Employees to Take The COVID 19 Vaccine In Nigeria: The Legal Implication

INTRODUCTION

The Covid-19 pandemic is not an event to be forgotten in the history of humanity. Coming at the peak of the move from the industrial age to the digital age with technological innovations influencing rapid changes in how we live and do business, the pandemic momentarily halted all activities and brought us to our knees. With the advantage of technology and digital innovations, however, we were able to recover, adapt and even progress, while adapting to the new normal of remote work, e-commerce, digital transformation, and virtual congregations from the safety of our homes.

The pandemic which had significant economic consequences globally necessitated a shutdown of many businesses and national economies. This resulted in increased unemployment rates as employers and employees were forced to take desperate and drastic measures such as salary reduction, remote working, redundancy, pay cuts and layoffs all in a bid to ensure that their businesses remain afloat as the pandemic raged.

In response to the challenges posed by the virus, vaccines have been developed and tested with a number receiving approval from the World Health Organization and the various national Food and Drug Administrations (FDAs), including, Astra-Zeneca, Pfizer-BioNTech, Moderna, Johnson & Johnson’s Janssen, Novavax. These vaccines are now being made available to the public through the governments of the respective nations and administered accordingly.

The AstraZeneca vaccine is currently available in Nigeria and many citizens are getting vaccinated. Despite the availability of the vaccine, many have expressed reservations and concerns about its effectiveness and whether employers can make it mandatory for their employees to get vaccinated as a prerequisite for continued employment. Whilst it is not out of place for some employers to require their employees to get vaccinated, some employees who due to religious and or personal reasons are unwilling to be vaccinated may find such requirement a breach of their fundamental right to equal treatment. Hence, a critical question that requires consideration is how employers can balance their duty to ensure the health and safety of their employees vis-à-vis the rights of the employee not to be discriminated against.

To this end, this article seeks to examine the propriety of employers reasonably compelling their employees to take the covid 19 vaccine in a bid to ensure safety in the workplace vis a vis the employees’ constitutional rights in Nigeria. The article also considers the practices in selected jurisdictions with a view to gain insights on the best approaches in resolving the legal difficulties that exist in this regard.

Employers Duty to ensure Employees’ Safety.

Generally, employers are responsible for the health and safety of their employees[1]. Employers in Nigeria have a duty to protect the health, safety and welfare of their employees and other people who might be affected by their business.[2]  Also, in the case of Iyere v. Bendel Feed and Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300, Muhammad, JSC  the court held that the general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk[3] This duty not only requires that its employees are in good health condition before being engaged to carry out any work but also extends to the responsibility of the employer to ensure that the work premises and conditions meet the set legal standards of the work operations. By implication, it can be suggested that the employer has a duty to ensure that its employees and other personNEl legally admitted to its business premises are not exposed to any health risks or hazards like the current covid-19 virus.

Thus, the duty imposed on the employer places the employer in a position to take practicable measures to ensure the safety of the employees and prevent exposure to injuries or infectious diseases. This is even more so since an Employer may be held liable for injuries sustained by the employees during their employment especially when it is shown that such an employer was negligent or did not provide the required safe environment for the employee.

In compliance with the above duty, many Employers have set up health insurance schemes for their employees to provide adequate medical care and ensure that their employees are mentally and medically fit to carry out their duties. Also, under the Employees Compensation Act[4], an employer is liable to make contributions to the fund to cater for any injury or health hazard suffered by an employee while working for the Employer. [5]

 

The Covid-19 Vaccine – Employers Duty

 

The covid-19 pandemic effected a lot of changes in the workplace as many Employers have had to incur more expenses with respect to the provision of adequate health insurance for their staff and put in place government recommended measures to prevent the spread of the virus in their work environment. Indeed, such measures as social distancing rules, compulsory use of face masks, and handwashing and sanitizing facilities were mandated by states of the Federation as a prerequisite for returning to regular business operations. Also, some Employers have had to request their employees to work from home to meet the social distancing requirements and in some cases complete shutdown of the businesses. However, with the invention of the vaccine and its current availability in Nigeria, it is not surprising that many Employers are eager to fully resume operations and thus may require their employees to take the vaccine in other to protect themselves and ensure safety in the workplace.

Whilst it is not out of place for employers to want to resume operations fully as well as provide a safe and healthy work environment for their employees, can such Employers compel their employees to take the covid 19 vaccine in to meet health and safety duties? It would not be unreasonable in most cases for employers to encourage employees to be vaccinated to protect themselves and others in the workplace. However, whether employers should require compulsory vaccination as a health and safety requirement, is unclear as the same will largely depend on the nature of work or job carried out in the place of employment and the amount of exposure the employees face in carrying out their duties under the employment.

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It must be noted that there is presently no legislation in Nigeria which compels mandates or makes it compulsory for citizens or individuals to be vaccinated. Indeed, not everyone is eager to take the vaccine due to personal or religious inclinations towards the vaccine or its potency. Therefore, if employers were to compel their employees to be vaccinated, failure of which would lead to termination of employment, it may be seen by some as abuse or encroachment of their fundamental rights to freedom from discrimination prescribed under the 1999 constitution.[6] Section 17 (3) of the Constitution of the Federal Republic of Nigeria provides that the State shall direct its policy towards ensuring that all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment.

 

However, one must also consider the need of the employer to ensure a safe and healthy environment for the employees especially in certain sectors of the economy such as medical, health and social services whilst taking into consideration the exposure of such employees. For example, if persons employed in the medical and health sector do not take the vaccine and become exposed, it would have a ripple effect on members of the public who come to them to receive medical attention thereby further exposing other people to the pandemic. Furthermore, employees who are exposed by nature of their jobs which may involve being in public places or having interactions with other people have the potentiality of contracting the virus and spreading it to other employees who by the very nature of their jobs are not exposed and thereby making the employer liable in such situations.

However, in as much as the constitution guarantees an individual’s right to freedom from discrimination[7] (in situations where an employer sacks an employee or discriminates against an employee who refused to take the vaccine on grounds of religion or for personal reasons), the same constitution in also makes provision for the right to life.  Section 33 of the constitution provides that;

33 (1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria

 

The right to life also entails freedom from situations or environments that can threaten an individual’s right to life. The Covid-19 pandemic is deadly and poses a threat to human life. An employee who has taken preventive measures to protect his life by taking the vaccine has a right to be free from exposure to the pandemic which is a threat to his or her life. Therefore, how can the employer balance these competing rights in the face of its duty to ensure a safe working environment for the employees. An employer is also at risk of claims for constructive dismissal by vaccinated employees in the absence of the requirement for mandatory vaccination. (I had no other choice but to resign because my employer refused to make colleagues that I work closely with getting vaccinated).

 

In some jurisdictions such as Indonesia, the covid 19 vaccine is compulsory and people who are eligible for vaccination but refuse to take the vaccine can be penalized. The sanctions could involve fines, delays or suspension of social aids, or delays or suspension of access to public services. Employers in these jurisdictions would have no problem making it mandatory for employees to get vaccinated.[8] In Australia, the state of Victoria enacted the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 requiring vaccination against “specified diseases” of all workers employed or engaged in public hospitals, denominational hospitals, and health service establishments. [9]

Also, in the United States of America, Employers may be able to mandate their employees to take the covid 19 vaccines under the Equal Employment Opportunity Commission (EEOC) 2009 guidelines on pandemic preparedness by mandating vaccination based on continued employment or, at the very least, as a condition of physically returning to the workplace. There are however exceptions that fall under the Americans with Disabilities Act (ADA) under which an employer must provide reasonable accommodations to workers who have medical conditions that make them unable to take the vaccine if a reasonable accommodation is possible.[10]

Another exception is provided for under Title VII of the Civil Rights Act of 1964 which is to the effect that employees may be able to refuse vaccinations if they sincerely hold religious beliefs that preclude vaccination and not being vaccinated doesn’t impose an undue hardship on the employer.[11]

The Covid-19 Vaccine- Employees’ Right

There have been mixed reactions to the release of the vaccines, and this will impact the acceptance levels of the vaccines and how many people will concede to receiving it. Considering the availability of the vaccine and its impact in the fight to eradicate the Coronavirus, governments, civil societies, employers of labour, and even social media influencers are aggressively advocating for people to present themselves to be vaccinated once the opportunity arises.

This leads to the emerging debate on the power of an employer to compel employees to take the Covid-19 vaccine as a condition of employment. Section 39 (1) of the Constitution[12]  protects the rights of citizens to hold opinions and to receive and impart information without interference, while Section 37 guarantees their rights to privacy. This evinces that citizens are entitled to think and believe whatever they want and be able to do so without scrutiny from an unwanted third party. The propriety or otherwise of receiving Covid-19 immunization undoubtedly falls within the realm of the private thought, belief and opinion of the person involved. In this part of the world, which is replete with misinformation, lack of trust for government and high levels of illiteracy, the public perception has always been that the pandemic was a fraud or scheme employed by the elite and political class to further oppress, kill, and rob the poor, uneducated, and helpless masses. The prevailing response is therefore to disregard all Covid-19 protocols as an unnecessary inconvenience while taking advantage of whatever benefits (such as palliatives and business opportunities) as kickbacks from the entire scheme. Going further, it is imperative to consider Section 38(1) which preserves the citizen’s freedom of thought, conscience and religion and the liberty to change the same as he desires[13]. This is a sensitive right entitling a person to determine what is right or wrong in his estimation subject to acting within the perimeters of existing laws. The issue of receiving the vaccine is a personal issue to be independently decided upon by the person involved. It is not an issue for the unilateral determination of the employer neither should it be made compulsory as that would amount to a derogation from the constitutionally preserved rights of the individual. Further, Section 45(1) of the Constitution allows the National Assembly to pass legislation that may derogate from the provisions in question “Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society…in the interest of defence, public safety, public order, public morality or public health…”. It is therefore clear that only an act of the National Assembly said to be enacted in the interest of public health can compel citizens to take the vaccine. Section 45(2) however provides that no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency. Section 45(3) also defines a period of emergency to be when the President has made a proclamation of a state of emergency under Section 305 of the Constitution.

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Flowing from the above, it is apparent that the National Assembly may only make laws to derogate from the constitutionally protected fundamental rights of the citizens in periods of emergency. As it stands, there is no such declaration of a state of emergency arising from the pandemic and therefore there is no reasonable justification for an Act of the National Assembly passing a law derogating from those rights. As such, there is no legally justifiable basis or grounds from derogating from those rights.

The importance of fundamental rights was emphasized by the court in NWEKE & ORS V. THE IG OF POLICE & ORS (2013) LPELR-21173(CA) thus “Fundamental Rights are rights that are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism.”

Fundamental rights are, therefore regarded as inalienable human rights which cannot be infringed without a breach of the fundamental law of the land, that is the Constitution, which recognizes such rights[14]

There are various reasons why employees may refuse to take the Covid-19 vaccine. Religious reasons, health considerations, personal preferences and social pressure are some of the explanations given. Some religious sects do not believe in taking vaccines and some categories of medical interventions, while others by virtue of their doctrine do not even believe the pandemic is real or that the virus would have an impact on them. Persons with underlying health conditions may also choose not to take the vaccine for fear of negative reactions or upon medical advice while others may decide against the vaccine due to social pressure from family and friends or public perception of side effects of the vaccine. The various options presented by the vaccines available could also lead to individual preferences on which product/brand to take in the absence of which they may opt to refrain from taking the vaccine until the preferred product becomes available.

On the flip side, with respect to the employer’s duty, Article 15 of the African Charter on Human and Peoples’ Rights requires that every individual shall have the right to work under equitable and satisfactory conditions. Under common law, the employer has a responsibility to provide and maintain, as far as practicable, a safe working environment for his employees. The duty of employers to provide a safe workplace for its employees is however subject to reasonable limitations[15] while by Section 20 of the Australian Occupational Safety and Health Act 1984, an employee’s duty of care requires him to work safely to ensure his own safety and health and ensure his actions do not cause injury or harm to others while also cooperating with the employer when they require something to be done for safety and health at the workplace. This shows that both employers and employees have the responsibility to ensure that the workplace remains safe for all.

In the circumstance, it behoves to consider if an employer in keeping up with his common law duty of care, can derogate from the fundamental rights of the employees? The answer is no. fundamental rights are inalienable rights that cannot be derogated from upon the whims and caprices of an employer no matter how “good” or “laudable” the reasons are. That is what makes those rights fundamental. An employer who decides to terminate employment on grounds of the employee’s failure to take the vaccine may be working at cross purposes with the law and found liable for discrimination or unfair dismissal. Prior to the present time, employers could terminate an employee for good, bad, or no reason at all[16]. However, in line with Section 7(6) of the National Industrial Court (NIC) Act, the NIC is enjoined to have regard to international best practices and labour standards and has in furtherance of this consistently held that employers of labour can no longer terminate their employee’s employment without giving any reasons or on flimsy grounds as this may be construed as unfair dismissal.  Article 4 of the International Labour Organisation Termination of Employment Convention 158 of 1982 expressly prohibits the termination of employment of a worker unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment, or service. It is therefore imperative to consider if failure to receive the vaccine can be validly relied upon as justification for terminating an employment or if it can be said to touch on the worker’s capacity to deliver on the employment. Considering the current trajectory of the NIC and the position of the law, it may be difficult for an employer to escape legal liability for termination on grounds of failure to receive the vaccine.

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Covid-19 Vaccine: Employer’s Duty vs Employees’ Rights-The way forward

Alternative courses of action available to employers who are concerned about the risk that unvaccinated employees may pose in the workplace may be to offer such employees the option of working remotely. This may however raise further issues such as where the affected employee is unable to work remotely due to the nature of his job, as a work from home order in such situations may be construed as constructive dismissal. Even where remote work is possible, employers must consider the practicability and justification for keeping the affected staff away from the workplace in perpetuity while other vaccinated staff enjoy unhindered access to the workplace. This may raise claims of discrimination, and also impact the affected employee’s earnings and opportunities for growth in the organization. In the end, employers may only be able to compel affected employees to continue with strict adherence to Covid-19 prevention guidelines such as the use of masks in the workplace, high levels of hygiene and sanitation, working separately, or even remotely under certain circumstances.

 

Conclusion

In Nigeria, as is the case in the United Kingdom, where there is presently no legislation in support of mandatory vaccination, employers who insist on compulsory vaccination may face legal actions on grounds of discrimination and breach of their constitutional rights. However, in the event that Nigeria decides to make laws that require compulsory vaccination, this may be argued to be contrary to the fundamental rights[17] enshrined and guaranteed by the constitution. The converse argument to this would be the provisions of section 45 of the Constitution. The argument would be that such a regulation requiring compulsory vaccination is justifiable in the interest of public health in the wake of the deadly nature of the pandemic. Where such a law exists, Employers in Nigeria can easily rely on such laws to compel their employees to get vaccinated.

In the final analysis, the best approach may be for employers to inform, educate, and encourage their employees to consider the vaccine rather than mandating the employees to receive a vaccine as this may create several legal risks for employers, including claims of disability and religious discrimination. At best, as the government has adopted, the general approach would be to encourage and educate its employees on the need to get vaccinated. However, some of the other ways by which employers may manage the competing rights of the employees are to consider the exposure of each employee in terms of the nature of their jobs and have a database of employees who are voluntarily interested in taking the vaccine and those who are not. Employers can make adjustments in terms of job roles or office spaces thereby putting those who have taken the vaccine in the same space whereas those who are not inclined to take the vaccine would occupy a different location where the same can be arranged. Furthermore, it is pertinent that employers take appropriate steps to ensure that the non-medical measures are complied with to avoid exposing persons who have elected not to be vaccinated to the virus. This is necessary to ensure that the workplace remains safe and healthy for all persons

Employers may also explore the option of incentivizing employees to receive the COVID-19 vaccine and make it convenient for employees to do so.

[1] Factories Act No.16 of 1987

[2] See sections 28, 29 50 and 60 of the Labour Act and Sections 7, 8, 9, 10, 11 12,46, 47, 48 of the Factories Act

[3] See also Kabo Air Ltd V. Mohammed (2014) LPELR-23614(CA),

[4] 2010

[5] Section 33(1) of the Employee’s Compensation Act, 2010 provides that the Employer shall, within the first 2 years of the commencement of this Act, make a minimum monthly contribution of 1.0 per cent of the total monthly payroll into the Fund

[6] See also section 38 of the 1999 constitution which provides for freedom of thought, conscience and religion. This means a person is free to hold whatever beliefs or religion they choose. If an employee does not believe in the vaccine and does not want to get vaccinated. He or she should not be forced to take the vaccine.

[7] See section 37 of the 1999 constitution.

[8] https://www.straitstimes.com/asia/se-asia/indonesia-makes-covid-19-vaccines-compulsory-allows-for-private-vaccination- accessed 04/04/2021

[9] https://www.mondaq.com/australia/health-safety/1032718/can-employers-make-the-covid-19-vaccination-mandatory accessed 04/04/2021

[10] https://www.mayerbrown.com/en/perspectives-events/publications/2021/01/mandatory-covid19-vaccination-policies-10-issues-us-employers-should-consider accessed 04/04/2021

[11] ibid

[12] 1999 Constitution of the Federal Republic of Nigeria (as amended)

[13] See also Article 8 & 9 of the African Charter of Human and Peoples Rights

[14] EL-RUFAI v. SENATE OF THE NATIONAL ASSEMBLY & ORS (2014) LPELR-23115(CA)

[15] Puneet Tiwari: Can employers compel employees to get the COVID-19 vaccine? | TheSpec.com

[16] FAKUADE v. O.A.U T.H.C., MGT. BOARD

(1993) LPELR-1233(SC)

 

[17] Section 38 of the Constitution deals with Freedom from discrimination.

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