Striking A Balance: The Issue of Mandatory Vaccination

The Covid-19 pandemic has thus far defied resolution despite the availability of vaccines since December 2020 on an emergency authorized use basis.  In fact, the pandemic is entering a new phase in which case numbers are rising, an increasing proportion of which are children, and the reimposition of stringent measures is being seen as warranted.  The reasons are clear.  First, the more transmissible variants that have emerged this year (2021) have caused case numbers and hence hospitalizations and deaths to spike as they have spread to different countries and have begun to impact children.  Second, vaccine hesitancy has proved to be a tough problem in every country where vaccines have been available, with the consequence that vaccination rates have plateaued.  This leaves tens of millions of unvaccinated persons in high-income, vaccine-available countries as well as hundreds of millions more in low-income, vaccine-scarce countries as fertile pools for the spread of the coronavirus and the appearance of new variants.

Broadly, this is the context within which the question of mandatory vaccination is being debated.  Compulsory vaccination raises pointedly the issue of a citizen’s (constitutional) right to liberty and security of the person and a patient’s right to refuse medical treatment.  However, other Covid-19 measures imposed by governments since the start of the pandemic have raised other related legal and constitutional issues which have attracted less debate and discussion.  These measures include: (a) states of emergency which have restricted freedom of movement and assembly, including religious services; (b) border closures, which have prevented citizens from returning to their homes; (c) quarantining and mandatory testing of travellers based on certain criteria; and (d) lockdowns affecting certain business interests depending on the nature of the business activity.

There has been a good deal of extra-judicial and other comment.  In the UK, Lord Sumption, a former UK Supreme Court judge lamented what he viewed as a lack of parliamentary oversight of the lockdown measures instituted in the UK, and apparent public acceptance of the restrictions and the erosion of their rights, which he attributed to fear.  Sumption pointed out that the public health regulations were intended to apply to infected persons and not to ‘healthy’ people.  In similar vein, US Supreme Court Justice Samuel Alito noted that: “… we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.  …Who could have imagined that the COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive fiat rather than legislation.”  Concerns about the potential erosion of the rule of law have been echoed in other quarters, including by the International Bar Association.  

There have been only a few instances of litigation of these measures.  Where matters have actually been adjudicated, the judiciary has thus far, been deferential to the Executive and the stringencies of the public health emergency.  In Trinidad and Tobago, the constitutionality of the regulations and guidelines for religious services made under the Public Health Ordinance were challenged and were dismissed [CV 2020-01370 Suraj and Others v Attorney General and CV 2020-02223 – Satyanand Maharaj v Attorney General].  Judicial review of Trinidad and Tobago’s travel exemption process and alleged delay and unfairness was dismissed [CV 2020-02707 Shirlanne Sacha Singh v Minister of National Security] and the constitutional challenge to the effect of border closure of citizen’s rights was also dismissed [CV2020-03855 Takeisha Clairmont v Minister of Health and Attorney General].  In the last-named case, the trial judge had this to say: “In the instant circumstances, the issuance of the impugned Regulation constitutes a proportionate interference with the affected constitutional rights in this time of a global pandemic and as such it is not a contravention of the said rights. The Court affords the Executive a measure of deference and exercises judicial restraint in relation to the public policy management of the health risks and resource allocation decisions associated with the COVID-19 pandemic, which is based on expert medical advice.”

Once vaccines started to be rolled out in the developed countries, attention in the Caribbean focused initially on the question of availability of vaccines and the effectiveness of the strategies adopted by regional governments to procure vaccines.  Although Caribbean countries had sought to leverage the COVAX initiative, supply conditions and pre-procurement by the developed countries saw regional countries resort to a variety of alternative procurement strategies.  Trinidad and Tobago took the position that it would procure and use only WHO-approved vaccines, while Guyana was prepared to procure what was available.  The public, at least those who wanted it, seemingly had a preference for a vaccine produced in the USA (Pfizer-BioNTech) or the UK (AstraZeneca).  The Chinese vaccine, Sinopharm, obtained WHO approval and the Chinese government made donations and purchased supplies available in significant quantities.  Guyana obtained and used the Russian Sputnik vaccine although it has (to date) not been WHO-approved.   Jamaica is using the WHO-approved vaccines AstraZeneca, Pfizer and Johnson & Johnson.

By the second quarter of 2021 the procurement debates had faded and given the slowing uptake of vaccines, were replaced by concerns about how restrictions were to be lifted if vaccination rates did not begin to approach ‘herd immunity’, hence prompting the need for ‘vaccine passports’ and mandatory vaccination, or some other strategy to attain herd immunity.  (Herd immunity is dependent on the transmissibility of the extant variants and is perhaps best understood as the level of vaccination and prior infection which keeps the R-number below 1).

While the Caribbean has done better than say Africa, in respect of vaccination rates, its rates seem to be plateauing at levels lower than those achieved in the UK, Europe and even the USA.  It is noteworthy that even at the levels of vaccination achieved in the developed countries, case numbers and deaths have remained high, and the re-imposition of restrictions is again under active consideration in countries such as Belgium, Austria, the Netherlands, and even the UK.  In the Caribbean, the Delta variant is now beginning to take hold and cases and deaths are rising in Trinidad and Tobago which recently re-opened its borders, and in Barbados, whose borders have always remained open.  Based on past experience, Jamaica, Guyana and other Caribbean territories are likely in due course to follow the same trajectory of rising cases.

Vaccination Rates in Selected Countries at November 10, 2021 (% of Population)

In the face of the resilience of the coronavirus, three alternative strategies have been mooted as the global community has muddled through responses to the pandemic over the last six months.  First, there is legislated universal vaccination of all citizens, except those medically exempt.  Perhaps to the surprise of those fearful of executive overreach and the breakdown of the rule of law, this has not happened or been seriously proposed, even in societies like China and Singapore, which are regarded as being more ‘authoritarian’.  In the Caribbean, governments have explicitly eschewed this option to achieve herd immunity.  This is somewhat surprising given that: (1) mandatory vaccination for other diseases has been legislated and implemented before; and (2) a legal challenge to such a policy on human rights grounds could fail since the courts are likely to defer to the executive’s argument that the measure is necessary and could deem it justifiable and proportionate in the context of continued high infection rates, strain on the health care system, and deaths.  The test of proportionality and reasonable justifiability is whether (1) the objective is sufficiently important to restrict a constitutional right; (2) the measure is rationally connected with the objective; and (3) the measure is no more than necessary to achieve the objective.

The second strategy is selective mandatory vaccination directed at certain occupations which are considered high-risk for transmission such as health-care, care homes, and the travel and hospitality industry, and which is implemented by employers.  There are certain public sector occupations which clearly fall into this category, e.g. police, prisons officers, and teachers.  This strategy has been adopted by the UK government in respect of staff at care homes and will be introduced for the NHS from April 2022.  In New York, the city administration mandated vaccination for health care workers and has now extended this to all municipal workers from end-October 2021.  It has also mandated ‘vaccine passports’ to be presented for entry to restaurants and public events.  An even more expansive strategy has recently been announced by the Biden administration in the USA, using the Occupational Health and Safety Administration of the Department of Labor, to mandate all organisations, public and private, employing more than 100 persons to vaccinate all employees unless medically exempt.  Unsurprisingly, the federal courts in the USA have immediately been engaged on the legality of the OSHA mandate.  The issue is likely to go to the Supreme Court.

The third strategy is ‘vaccinate or test’, where the employer ‘requires’ vaccination or the employee must test for Covid-19 periodically at his/her expense.  This is not really mandatory vaccination, but disincentivizes the employee who does not get vaccinated and in some instances may also reward employees who do.  Trade unions have objected to this approach and have found support, in Trinidad and Tobago at least, in the opinion of the President of the Industrial Court who has suggested that employers cannot unilaterally mandate vaccination, employees must be consulted, and unvaccinated employees cannot be sanctioned for example with suspension or dismissal.   A test case is due to go to the Trinidad and Tobago Industrial Court in the first quarter of 2022.

Governments in the region, as employers of public sector workers, have not even gone as far as private sector employers in requiring their public sector employees to be vaccinated, failing which they face monetary penalties or other sanctions.  The region’s governments have embraced suasion rather than mandates.  Governments have sought to re-open schools for in-person teaching, with the knowledge that children can contract and spread the virus, but they have baulked at mandating vaccination of teachers, and merely encouraged vaccination of older children and the teachers.  While not mandating vaccination for its workers, the government of Guyana has perhaps gone furthest in explicitly indicating to unvaccinated members of the public who wish to access public buildings, that they would have to make an appointment and present a negative test result taken within seven days of the appointment.

Writing in June 2021 in the regional newspapers, Professor Rose-Marie Belle Antoine then Dean of the UWI St Augustine Law Faculty examined the constitutions of regional countries, as well as labour laws.  Referring to the recent European Court judgment in Vavricka v Czech Republic as well as taking the view that in exceptional circumstances terms and conditions of employment could be varied by employers, Belle Antoine concluded that as long as there are sufficient vaccines available and “…as long as the pandemic rages on, there may be good grounds for imposing mandatory vaccination, at minimum for particularly high risk workers, in the public interest”.

The issue of mandatory vaccination remains live for countries in the region and indeed around the world because of the resilience of the SARS COV-2 virus, the elusiveness of herd immunity due mainly to vaccine hesitancy, and the strong impetus to return economies and social life to more or less normal operation.  A fresh round of legal challenges centred on vaccine mandates can be anticipated as the courts in various countries are asked to strike a balance between public health considerations and human rights.  The introduction of better clinical treatments, including new Covid pills, attenuate the argument that hospitals and ICUs will be overwhelmed.  On the other hand, if herd immunity is not attained, the possibility of new, more transmissible variants remains real.  It may well be that the right balance would be for courts, while not upholding mandatory vaccinations, to uphold the constitutionality of ‘vaccine passports’ and the right of employers, including governments as employers, to impose reasonable restrictions on unvaccinated employees and customers, and as has now been done in Singapore, for governments to bill patients who are unvaccinated by choice for their hospitalization.