The Fijian government published the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 on 8 July 2021 to deal with mandatory vaccination for COVID19. This article will refer to it as “the Regulations”. The Regulations came into effect on the same day as it was published. This means that the Regulations are applicable in Fiji. Read the Regulations
The Regulations make mandatory vaccination against COVID19 a requirement for entry into the enter work premises for the employer and the employee. The mandatory vaccination requirement is a controversial subject end may likely be challenged in court on constitutional grounds. This article does not consider the legality of the amendment but focuses on the 4 key aspects of the Regulation.
The amended regulations introduce a new part 14A to deal with the COVID-19 vaccination issue. Read the Regulations
- Mandatory Vaccination for Employers
Regulation 52B(1) bars any employer from entering the workplace unless the employer has received the first dose of the COVID-19 vaccine by 1 August 2021. Sub-regulation 2 bars the employer from entering the workplace unless the employer has received the second dose of the COVID-19 vaccine by 1 November 2021.
There are exceptions to this rule. These exceptions apply where the employer is below the age of 18. The second exception applies to those with a history of severe allergic reaction to a component of the vaccine. The final exemption applies where the employer has been exempted by the Permanent Secretary for Health and Medical Services for a legitimate medical reason.
Regulation 52B is a penal section meaning that noncompliance will attract prosecution. Sub-regulation 4 makes the employer liable for a fine of up to $1500 for a breach of this section.
For the purposes of Regulation 52B an employer has been broadly defined. It includes soul traders, partners, trustees, directors, bored or governing bodies, CEOs, any person designated or performing the functions of the head of the employer. In case of government departments the Permanent Secretary or the head of ministry or the head of department. This would cover most if not all employers in Fiji.
- Mandatory Vaccination for Employees
Apart from the restriction on employers, Regulation 52C imposes restrictions on unvaccinated employees from entering the workplace. Regulation 52C(1) and (2) mirror section 52B by barring the entry of employees into the workplace if the employee has not received the first
dose of the COVID-19 vaccine by 1 August 2021. It also applies if the employee has not received the second dose of the COVID-19 vaccine by 1 November 2021. The exceptions to this requirement are the same as with the case of the employer.
As in the case of the employer, this is a penal provision and contravention by the employee can result in a fine of up to $500.
It is interesting to note that the Regulations do not impose any obligation on the part of the employer to monitor or verify the vaccination status off its employees. While the reason for this omission is not known, the omission absolves the employer from any legal liability under the Regulations. Liability may exist under the law of tort or under employment law should the entry of an unvaccinated employee result in an outbreak at the workplace resulting in harm (most likely medical) to other workers. This article does not focus on this but we may do so later.
- Closure of Business – Unvaccinated Employer
Regulation 52E gives specific powers to the State to order the closure off a business if the employer has not received at least the first dose of the COVID-19 vaccine on or before 15 August 2021. The business would only be permitted to resume operations after the employer receives the first dose of the COVID-19 vaccine.
At this point in time, it is not clear whether the Regulations require all persons defined as the employer in an organization to receive the first dose or anyone person would be sufficient. However, the intent of the Regulations would suggest that it would apply to all persons in an organization who fit in the definition of an employer.
Once a business has resumed operations after the employer has received the first dose of the COVID-19 vaccine the employer must receive the second dose of the COVID-19 vaccine within eight weeks of his first COVID-19 vaccine. If the employer does not receive the second dose within the eight weeks the business may be ordered to be temporarily closed and will only be permitted to open once the employer receives the second dose of the COVID-19 vaccine. Once again whilst the drafting is not clear, the reasonable assumption to make is that it would apply to all persons who qualify as an employer in an institution.
- Vaccination status of employees, dismissal from employment and the need to get specific legal advice.
Regulation 52F permits the employer to dismiss an employee from employment should the employee not receive the first dose of the COVID-19 vaccine by 15 August 2021 or the second dose by 1 November 2021.
The provision does not automatically result in the termination of the employment. The employer will still be required to make a decision on the dismissal and act on it. While this provision permits the dismissal of the employee, the employer will still need to comply with the Employment Relations Act, any collective bargaining agreement or employment contract. Read the Act
The Regulations do not set out any processes or procedures that the employer is required to follow. This leaves the employer in a difficult situation and employer should act with caution. We suggest that the employers get specific legal advice on this prior to terminating any employment.
Employers should always keep in mind that like with all dismissals the employee has the legal right to challenge the dismissal in the Employment Relations Tribunal or the Employment Court and in which case the onus will be on the employer to establish that the dismissal was not unfair. It is for this reason that specific legal advice is recommended.
The author may be contacted for any queries, clarifications or legal advice.
Armish Pal – Managing Partner, AP Legal (see profile)
(Note: This is not legal advice and is only being disseminated for awareness purposes. Specific legal advice should be sought if required. AP Legal takes no responsibility should this document be relied on as legal advice)