Employee Rights: Mandatory Covid-19 Testing And Vaccination

• Published date: 27 June 2022
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Contract of Employment, Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Lennox Paton
• Author: Mr Dwight Glinton

Can an employer make COVID-19 testing mandatory?

In The Bahamas, the Health and Safety at Work Act¹ stipulates that it is the duty of an employer to reasonably ensure the health, safety and welfare of all its employees². An employer also has a common law duty to provide employees with a safe work environment and a safe system of work³. An employee is obliged under the Health and Safety at Work Act⁴ to take reasonable care of the health and safety of themselves and of others who may be affected by their acts or omissions at work. Also, an employee must cooperate with their employer's efforts to fulfil its duty to ensure the health and safety of workers. It is generally accepted that COVID-19 tests would be deemed a health and safety at work measure under the Health and Safety at Work Act. Therefore, it is widely felt that an employer could make COVID-19 testing mandatory given that it would be considered a part of its health and safety responsibilities and employees would be obliged to comply with the testing policy.

Can an employee require that employees pay for COVID-19 tests?

Under the Health and Safety at Work Act, an employer must not charge an employee for anything done in pursuance of its statutory health and safety obligations⁵. In this regard, requiring that an employee pay for a COVID-19 test could be deemed a statutory violation. Also, mandating that employees pay for COVID-19 tests may be a breach of the employment contract. At common law, a material variation by an employer of an employee's contract of employment without the employee's consent could give rise to a breach of contract, which would entitle the employee to resign and claim constructive dismissal against their employer. Upon being successful in such a claim, an employee could receive damages similar to termination pay. Requesting that an employee pay for COVID-19 tests is likely to be deemed a fundamental change in the contract of employment, and the employee could commence legal proceedings on the ground of constructive dismissal.

Should the government wish to formulate regulations that require employers to fund employee COVID-19 testing, legislators could review the laws in other jurisdictions which already have specific regulations that require employers to provide COVID-19 testing free of charge⁶. It is felt that the implementation of such laws in The Bahamas would likely be met with great resistance from employers, particularly those with large staff complements, whose...