Covid-19 is arguably the biggest existential threat to man in decades, from one corner of the world, swept across the face of the earth, a novel virus. Big states had to close their borders, and world economy crumbled.
In the wake of this threat, modern medicine prevailed, various scientific research communities came up with vaccines to fight the spread of the virus, while standard health practices were been observed.
Nigeria received on the 2nd of March, 2021, nearly four million doses of the Oxford-AstraZeneca COVID-19 vaccine. The arrival enabled the National Primary Health Care Development Agency (NPHCDA) to carry out the vaccination of Nigerians in priority groups, starting with health care workers at the frontline, strategic people in leadership, the elderly and other Nigerians.
The arrival of the vaccine bears good news, but a lot of legal issues comes into play when carefully considered. These issues and liabilities are the key focus of this essay.
What are the legal liabilities on the part of the employer and employee?
With the arrival of the vaccine, a lot of countries have adopted a highly flexible vaccination policy in order to escape any liability that might come with a court order against them.
Before I discuss on the legal liabilities that exists, it’s important to examine factors on which an employee might refuse to be vaccinated, if such factors are reasonably justifiable in a democratic society.
GROUNDS ON WHICH AN EMPLOYEE MIGHT REFUSE TO BE VACCINATED
Refusal to be vaccinated based on Human Rights concern:
i. Religious Beliefs – This right forms a big basis of most medical concerns, the right of an individual to refuse a medical operation on grounds of faith, as long as he is legally qualified to make such decisions.
However, the exercise of this right must fall within the parameters of ‘sincerely held religious beliefs’. The right to freedom of religion as provided in Section 38 of the 1999 constitution provides not only for the freedom to have a religious belief but also to propagate the belief in worship, teaching, practice and observance.
In relation to a mandatory vaccination policy, professing this right as a basis for refusal of vaccination is quite dicey as the government cannot compel or punish one for entertaining or professing a particular religious belief.
However, it should be noted that the religious belief to warrant a refusal must be a “sincerely held religious belief”, it must not be any spurious belief that the vaccine is antichrist or demonic.
Although it is for the court to decide what is a “sincerely held religious belief”, however, any lay man can see that such spurious belief is unreasonable and holds no ground. If the employee will base refusal on such belief, he will be legally liable. Even at this, the employer will have to accommodate his employees to another safer measure, like wearing a mask and social distancing.
However, there might be a derogation from this right for the sake of public safety i.e the need to prevent and protect the public from the spread of the virus. Although, this is not tested as there are no court decision on the matter.
ii. Privacy – An employee might decide not to be vaccinated or share status of health report on grounds that he/she has a constitutional right to privacy, a right to be left alone. Although, Section 37 of the 1999 constitution does not expressly provide for the protection of health information, but an inference can be made from the words, “The Privacy of citizens” to mean anything they consider to be private information, not to be shared with the public without their consent.
Similarly, the National Health Act (NHA) 2014 regulates health users and protection of their personal information. In January 2019, the Nigerian Information Technology Development Agency (NITDA) released the Nigerian Data Protection Regulations (NDPR) which provides inter alia that NDPR requires data controllers to develop adequate security systems to protect data in their custody.
Refusal to be vaccinated based on Health Reasons: An employee may refuse to be vaccinated on the basis of health reasons. An employee may be exempted from mandatory vaccination if he has a disability that will cause harm should he take the vaccine, such disability must be contained in the Nigeria’s disabilities act .
Also, an employee might be allergic to some certain vaccines. In this instance, the employer would have to come up with other means of accommodating such an employee.
Refusal to be vaccinated based on Conspiracy Theories: Here, an employee will be judged according to the standard of a reasonable man. Whether a reasonable man would in this circumstance refuse vaccination based on theories that the vaccine is a move by the whites to destroy Africa or other theories to which he might have come in contact with.
A reasonable man, it has been observed, is not a perfect citizen nor a paragon of circumspection, a man in such an environment would be adjudged to be of normal intelligence with average knowledge and common sense in everyday matters .
In this scenario, a man cannot be held to be reasonable as such theories and ideas are unfounded and lacks credibility. Neither can it be argued that majority of the populace have such ideas, even though it might be true, he will still be judge as unreasonable because there’s no credibility to his claim , thus, he will be held liable should his recklessness result to an outbreak of the virus in the workplace.
LIABILITIES ON THE PART OF AN EMPLOYEE WHO IS INFECTED BY THE VIRUS DUE TO REFUSAL
This is a question of law to be determined with the available facts. Is an employee liable or to what extent is the liability of an employee who refuses to be vaccinated, does he owe a duty of care to his fellow workers?
In such a scenario, an employee will be liable, for he ought to have reasonably foreseen that his refusal to be vaccinated will directly harm other workers by contaminating the workplace should he come in contact with the virus, and because he’s not vaccinated, he would be a carrier of the virus to the workplace, before it would be known that he has been infected, it might have been transmitted to the surfaces of the workplace to which anyone might carry the virus and spread around the workplace and even down to their individual homes.
But should other workers get vaccinated, will the refusal of one person or a few persons result to a spread of the virus since other workers are already vaccinated against the virus? For to establish negligence one must show consequential damages.
It is trite law that one ought to show that the employee’s refusal was the causation of covid-19 related complications even though one has been vaccinated, however, the employee cannot make the argument that such worker was already having a failed organ which couldn’t hold the virus and thus was no fault of his .
The “Egg Shell Skull” principle will apply in this scenario, to the effect that the employee will take his victim as he finds him, and will be held fully liable.
LIABILITIES ON THE PART OF AN EMPLOYER
An employer owes a duty of care to his employees, should such duty be breached and result to an unsafe working space. It is imperative to point out that an employer will not be held liable to an employee who refuses to be vaccinated even when provided with the funding to do so.
In The Williams case an employer was held not to be liable to an employee who refused to wear a safety belt when provided with, and as a result, fell from a building while working and died.
Duty of an Employer to Provide a Safe Working Place
An employer has a statutory duty to provide a safe working place to all employees. He must take care reasonable care to ensure that the premises in which the employee is working is safe, in order to prevent injuries of all sorts even the spread of covid-19.
Thus if the work place becomes unsafe due to his inability to provide a safe working place, he will be held liable if it becomes unsafe and there’s a spread of the virus.
Whether an Employer owes Compensation to an Infected Employee
Originally, an employer owes compensation to any employee who suffers damages in the work place. To know the law on this, it is important to draw inference from the relevant law.
The Employees’ Compensation Act defines an occupational disease as a disease that is contracted in the course of an employment or due to exposure to risk factors at work and includes viruses, from the definition it can be inferred that Covid-19 constitutes an occupational disease under the act, and any employee who suffers damage as a result of it in the course of an employment or meets risk factors, where reasonable care is not taken by the employer, is entitled to compensation .
However, in the scenario where an employee refuses vaccination and is infected by the virus, I posit (since there are no judicial authorities) that the employer will not be liable, and will owe no compensation.
Even if the work place was unsafe, he still might have been infected with the virus, because there’s no telling where one is infected with the virus.
Will an Employer be Vicariously Liable to an Employee who is infected due to refusal of another Employee to be Vaccinated?
It has been said that the rule of vicarious liability arose out of a consideration of social policy and not necessarily on fault .
The rule finds its strength in the words of Lord Brougham that a person who derives economic benefits from the activities of another should also bear the risk of damage inflicted by those acts.
Here, the employer will be vicariously liable for he could have taken other measures to protect other workers from the wrong of another.
Legal Options Available to an Employer
In the event that an employee refuses to be vaccinated, the workplace will be unsafe. The question here goes, what are the legal options available to the employer? Some options might be;
-Stop him from attending the workplace
-Place on unpaid leave
These options might raise legal issues and court battles, depending on the terms of the employment contract. The only way to escape liability on the part of the employer is if the employment contractual conditions includes a term to comply with all health measures which will obviously cover vaccination.
Who will Pay for the Vaccination?
There are no laws regarding this, the employer might decide to pay for it or he might ask the employees to pay for it since they are being paid for the services they render. However, government might decide to pay for all its workers out of tax payer’s money since they render effective services to the public.
Can mandatory vaccination be enforced? From the foregoing, there’s no telling if government will take it up as an issue due to the liabilities involved. It is expected that employers get creative in handling these issues to avoid liabilities by using other health safety measures.
The legislature can be lobbied to provide adequate laws regarding the issue because a society without appropriate laws will turn into a jungle, kill or be killed and abuse will be inevitable.
About the Author
Boyode Favour Ejaita is a Law student and legal author. He can be reached via:
E-mail: [email protected]
•This essay was awarded second runner up of the Christian Aniukwu Prize for Advocacy Essay Competition