COVID-19: Can Employers In The Cayman Islands Mandate The Vaccine?

• Published date: 01 March 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Unfair/ Wrongful Dismissal, Health & Safety, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Employment and Workforce Wellbeing, Operational Impacts and Strategy
• Law Firm: HSM Chambers
• Author: Mr Kerrie Cox

In December 2020, the Premier announced that a mass vaccination campaign to prevent the spread of COVID-19 will be rolled out across the territory in January. In unveiling the plan, he stressed that inoculation will be voluntary but encouraged the public "to do due diligence, and to keep their minds open to the benefits that participation will offer".

As the roll-out of the COVID-19 vaccination builds momentum in the Cayman Islands, employers will be considering the implications for their staff and workplace.

Many employers are likely to opt to encourage employees to take up the vaccine, without mandating it. However, there will be some who in taking account of the needs of the business, may be contemplating whether to impose compulsory vaccination. Requiring employees to be vaccinated raises a number of matters which will need to be thought through before implementation. HSM Partner Kerrie Cox explores some legal issues that could arise.

Can employers mandate vaccination?

A direction to take the vaccine could be regarded as a 'reasonable instruction' on the part of the employer, depending on the individual circumstances of the business. For example, employers in the social care sector may be able to issue a reasonable instruction to employees to take the vaccine because refusal could put vulnerable people at risk. Conversely, employers in other business sectors will not have the same strong rationale for mandating staff inoculation.

Clear communications and engagement with the workforce would assist an employer who does wish to pursue the mandatory route.

Can employers dismiss for failure to follow a reasonable instruction to vaccinate?

Failure to follow a reasonable instruction can lead to a fair dismissal, most likely 'dismissal for some other substantial reason' (SOSR). Again, using the social care example, a care home employer could well be able to rely on a refusal to seek vaccination to dismiss an employee - based on the instruction itself being reasonable. Nonetheless, the dismissal process also has to be fair, with each case considered on its own facts. Only an employee who unreasonably refuses to be vaccinated could be fairly dismissed. There must be an opportunity for the employee to set out the basis for their refusal, and the employer will need to consider those reasons in the context of its business.

One of the challenges for employers will be in justifying why accommodation can be made for those employees who are, for example, pregnant, or because of a health condition, cannot take the vaccine. This is likely to go to the proportionality of the approach and will be relevant should there...