The Human Rights and Anti-Discrimination Commission commends the Fijian Government’s continued effort in ensuring that COVID-19 vaccination is accessible to all in Fiji and notes with appreciation the support provided by the international community. There is global consensus that an effective, coordinated and equitable roll out of the vaccination programme will not only save lives but can pave the way for a robust global economic recovery. The Commission is well aware of the unprecedented deleterious impact that the global pandemic has had on Fiji and the rest of the world. Globally, as of 9 June 2021, there have been 173,674,509 confirmed cases of COVID-19 including 3,744,408 deaths reported to the World Health Organisation. 

This pandemic has halted economic productivity, accentuated existing inequalities and deepened poverty.  It has disproportionately impacted on our ability to enjoy a broad range of civil and political rights as a result of the measures introduced to contain the virus. The Commission, therefore supports the states’ effort to vaccinate as many people in Fiji as possible to ensure the required herd immunity needed to protect Fiji against this deadly pandemic. As of 8 June 2021, a total of 220,437 people in Fiji have received their first vaccine dose. A total of 4773 have received their second dose. The Ministry of Health’s target population for COVID-19 vaccination is now 587,651. The HRADC encourages all those who are yet to be vaccinated to opt to be vaccinated. 

Constitutional safeguards against forced vaccination

Vaccination, however, is not mandatory and entirely voluntary. People have a choice but that choice must be based on adequate and accurate information about the vaccine based on scientific evidence and free from prevailing prejudices in our society based on any prohibited grounds of discrimination such as gender, ethnicity, religious or sexual orientation. This is why information campaigns need to be intensified and sustained for the duration of the vaccination process to allow the members of the public to be able to make informed choices. It is imperative to note that in consonance with the constitutional safeguard provided under section 11 (3), the State has not coerced anyone to be vaccinated.  Section 11 (3) of the Fijian constitution expressly provides that 

“Every person has the right to freedom from scientific or medical treatment or procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian”.  

The right to freedom and security of the person equally includes the right not to be subjected to forced medical procedures without ones informed consent. It must be noted that section 11 is a non-derogable right even in times of national emergency and therefore immune to the exceptions set out under section 6(5) of the Fijian Constitution. This right, guaranteed under section 11 is once again expressly protected under section 43 (1) (a) of the Fijian Constitution on the limitation of rights under states of emergency. 

Can employers make vaccination a precondition for employment? 

In recent weeks, the Commission has received complaints and concerns about whether employers can make vaccination mandatory. Some workers have expressed grave concern about being compelled by their employers to get vaccinated as a new condition of employment. These employees believe that they must be afforded the right to make an informed choice rather than being compelled to get inoculated, acting under duress because of the fear of losing their jobs and imminence of unfair dismissals if they decide not to get jabbed. It is imperative to note that the issue, however, is far more complex than employers coercing employees. 

Some employees, who have had their first dose of vaccination, have also contacted the Commission expressing concerns about their colleagues who have made a conscious choice not to get vaccinated and the health and safety risks that choice invariably poses not only for them in their immediate workplace environment but their families.  They raised questions about their ‘right to fair employment practices, proper working conditions and to work in a safe and healthy environment’. 

Employers, on the other hand, have also informed the Commission that they have an obligation to ensure a safe and healthy workplace environment and that it is necessary to have all its employees vaccinated to effectively curb the spread of the pandemic which has already halted economic productivity and cost jobs and livelihoods. Employers have implored that they are justified in calling for mandatory vaccination for employees in certain workplaces such as factories and supermarkets that house a large number of workers, those that work with vulnerable groups such as children, the elderly, persons with disabilities and those with other underlying health conditions, high risk businesses and those working in medical facilities. In the interest of the health and safety of the entire workforce, some employers have argued, that every worker must be vaccinated as a new condition of employment. 

Any consideration about mandatory vaccination as a precondition for employment must take cognisance of our existing laws in relation to the constitutional safeguards against freedom from cruel, degrading and inhuman treatment which includes the right to be free from forced medical treatment, rights and exceptions in relation to employment matters  including the obligations of employers and employees in ensuring health and safety as provided under the ancillary legislations such as the Health and Safety at Work Act and the Employment Relations Act as well as consider the evolving jurisprudential developments that weigh the interests of the individual against that of the community and call for sanctions that are lawful, proportionate and necessary. 

Legally, vaccination would be considered as a medical treatment and under section 11 (3) of the Fijian Constitution, this is predicated on informed consent. This does not however, preclude the possibility of an employer making proof of vaccination as a condition of employment of new employees. However, the employer must ensure that these actions do not give effect to discrimination on any of the prohibited grounds prescribed under section 26 (3) of the Fijian Constitution and act in consonance with the strong and salutary constitutional safeguards under section 24 protecting the right to privacy. As the crisis worsens, this will invariably require changes to our laws. Furthermore, while guaranteeing the right to fair employment practices, including humane treatment and proper working conditions under section 20(1), the Fijian Constitution also places a limitation to this right under section 20(5) (a) and (b) on the grounds of public health and for the purposes of protecting the rights and freedoms of others. Consideration must be given to whether an employee not being vaccination genuinely creates a health and safety risk that the employer cannot reasonably accommodate so that vaccination is not used as a tool for reprisal and recrimination for other pre-existing employment relations issues. To justify such a view will require an increase in risk, based on new cases of community transmissions and a case-by-case assessment taken in each instance. 

Duties of the employers to their workers under the Health and Safety at Work Act 

Section 9 (1) of the Health and Safety at Work Act expressly provides that “every employer shall ensure the health and safety at work of all his or her workers”. Section 9 (2) (e) of the Act further places an important obligation on employers “to provide and maintain a working environment for his or her workers that is safe and without risks to health and adequate as regards facilities for their welfare at work”. It is imperative to note section 9 (2) (f)  of the Health and Safety at Work Act also obligates employers  ‘to develop, in consultation with the workers of the employer, and with such other persons as the employer considers appropriate, a policy, relating to health and safety at work, that will (i) enable effective cooperation between employers and the workers in promoting and developing measures to ensure the workers’ health and safety at work and (ii) provide adequate mechanisms for reviewing the effectiveness of the measures or the redesigning of the said policy whenever appropriate”. Section 10 of the Act also prescribes the duties of employers and self -employed persons to non-workers in ensuring that the latter are not exposed to risks to their health and safety arising from the conduct of the formers undertaking while they are at his or her workplace. 

Workers also owe a duty of care under the Health and Safety at Work Act 

Section 13 (1) of the Act places an important obligation on workers at all times while at work to take all reasonable care not to take any action that creates a risk, or increases an existing risk to the health or safety of any worker including himself or herself or other persons (whether they are workers or not) at his or her workplace as well as in respect of any duty or obligation imposed on the worker’s employer or any other person under the Act to cooperate with the employer, or any other person, to the extent necessary to the employer or other person to fulfil that duty or obligation. 

Duty of Employer to provide work under Employment Relations Act 

Section 24 (1) of the Act provides that an employer must, unless the worker has broken his or her contract of service or the contract is frustrated or its performance prevented by an ‘act of God’, which includes a pandemic declared by the World Health Organization, provide the worker with work in accordance with the contract during the period for which the contract is binding on a number of days equal to the number of working days expressly or impliedly provided for in the contract. 

Employers need to strike the right balanced based on the nature of the industry, whether they are dealing with vulnerable groups, and their legal obligations under the existing employment contracts. In considering whether to implement a mandatory vaccination policy at workplace, the employers must take into account the following factors:

• the number of vulnerable employees in the workplace
• an assessment of the role’s exposure risk to the virus and the employees’ exposure to the public
• is it a closed building/space or is there adequate ventilation?
• can the workers practice physical distancing in the available space or office setting?
• do workers have personal protective equipment?
• has the employer been flexible in giving workers time off to get vaccinated? 
• Do the employees have access accurate and timely information about the vaccination? 
• existing work contracts and lawful grounds for modification to include new conditions of employment taking full cognisance of sections 9 ,10 and 13 of the Health and Safety at Work Act, and sections 24, 33, 41, 75, 77, 84, and 85 of the Employment Relations Act
• draft guidelines on vaccine policy addressing the specific risks, how it will be managed, why vaccination is required in consultation with workers to balance rights and responsibilities.
• has the employer considered other control measures as an alternative to vaccination? 

The position taken by WHO on vaccination is that ‘vaccines are a critical tool in the battle against COVID-19, and getting vaccinated is one of the best ways to protect yourself and others from COVID-19’. They have arrived at this conclusion based on science. It is critical that employers take a sensitive approach to this issue. The employer must consider all reasonable alternatives to dismissal such as allowing the employee to work from home or allocate alternative duties for a specified period and make an assessment based on whether the employee works in a high-risk area which poses a real and imminent health and safety risk. 

It is crucial for everyone to understand that rights come with responsibilities. Every worker has a right to a safe and healthy workplace and the employer is legally obliged to ensure that workers have a safe and healthy work environment. Therefore, the Commission encourages all employers and employees to consider the greater public interest of keeping our workplaces safe and ultimately our homes and our country safe and healthy. We are in a precarious situation, one which demands pragmatic solutions. We need to consider the health of the nation as a whole.  The State has an important obligation under the Fijian Constitution to uphold the right to health and the right to economic participation and employers and workers have a critical role to play in ensuring that we find the right balance. 

Evolving jurisprudence 

Our laws continue to evolve just as the virus continues to mutate and pose new forms of threat. The European Court of Human Rights (ECHR) in Strasbourg ruled in April this year in Vavřička and Others v. the Czech Republic that compulsory vaccinations would not contravene human rights law and may be necessary in democratic societies. A Czech man had challenged his country’s vaccine requirement for young children, a policy which did not physically enforce vaccination but parents who refused to let their children get vaccinated can be fined and unvaccinated children excluded from pre-school, after being fined for refusing to have his son and daughter vaccinated against tetanus, hepatitis B and polio. 

The plaintiff, Pavel Vavricka, said the law infringed on his family’s right to a private life. Five other families filed similar suits after their children were denied admission to preschools or nurseries. While this case was not about COVID-19 vaccination, it will no doubt set an important precedent. The judgment showed that states enjoyed a wider margin of appreciation in determining vaccination policies, as long as vaccination is not forcibly imposed. The judgement also suggests that governments are free to use economic sanctions and incentives to encourage vaccination but measures must be proportionate.  States have a positive obligation to protect the health and life of their residents including those that are vulnerable to certain diseases and those who cannot have specific vaccines for medical reasons. The Human Rights Court agreed that vaccine obligations place a burden on an individual, but it added that the societal benefits outweigh that burden. The Indian courts are presiding over cases relating to Covid-19 ranging from supply of oxygen to availability of hospital beds and more recently with the Supreme Court telling the Indian Government: Wake up and smell the coffee, and ensure that its vaccine policy is flexible enough to accommodate changes to address concerns. There is little doubt that our laws too will evolve as the virus mutates and places new demands on our human rights obligations.  

• Ashwin Raj is the Human Rights and Anti-Discrimination Commission director.