Gov’t should join COVID-19 court cases

WHEN THE Supreme Court begins its hearing on Friday into the applications by employees of two firms – Michael Lee-Chin’s AIC and Glen Christian’s Cari-Med Group – for injunctions against vaccine mandates, the Government must attempt to join the cases as an interested party.

At the very least, the attorney general, Marlene Malahoo-Forte, should seek the court’s permission to file amicus curiae (friend of the court) briefs on the underlying matter. The administration should do the same thing with respect to Doric White’s case against Digicel over similar issues. It must also be prepared to enjoin any other matter of employees seeking the court’s endorsement of their constitutional right to resist demands that they be inoculated against COVID-19.

Similarly, the Employers’ Federation, the Private Sector Organisation of Jamaica (PSOJ), the Jamaica Manufacturers and Exporters’ Association (JMEA) and the Jamaica Chamber of Commerce (JCC), which have legitimate interests in the outcomes of these cases, should attempt to be part of them. Indeed, the jointly developed protocols of these organisations for how their members should deal with vaccine-resistant staff form part of AIC’s defence of its actions.

But given the public law implications of these matters, the greater need for clarity, and therefore the obligation to become involved in the cases, rests with the Government. The clarity that they ought to provide of what is permissible with respect to vaccine mandates will be an opportunity for the Holness administration to end its tentative approach, and its leadership from the rear, on the issue. Indeed, the emerging controversy between the governor general, Sir Patrick Allen, and some of his staff over their vaccination status is an additional basis for the Government to intervene in the cases.

HAMSTRUNG ECONOMY

The COVID-19 pandemic is a major public health crisis that has also hamstrung Jamaica’s economy. Since the first case of the coronavirus was detected here 20 months ago, nearly 90,000 people have contracted the disease and close to 2,300 have died from it. At points, hospitals have been overwhelmed with COVID-19 patients. The healthcare system has come close to collapse. Additionally, faced with period lockdowns aimed at slowing the spread of the virus, Jamaica’s economy declined by more than 11 per cent in 2020. Some experts predict that it will take years to recover the lost ground.

Indeed, despite the increased, and growing, availability of vaccines against the virus, take-up of the vaccines has been slow. Only 14 per cent of the island’s population is fully vaccinated. The figure rises to 20 per cent when the partially vaccinated (people having one shot of a two-dose regimen) are taken into account.

It is against this backdrop that Prime Minister Andrew Holness has warned of the possible imposition of national vaccine mandates – without being specific about what his administration has in mind. Some companies, among them AIC, Cari-Med and the telecoms, Digicel, have gone further and implemented their own regimes. These mostly require that staff either show proof of being vaccinated or provide periodic evidence of tests, at their own expense, confirming that they are free of COVID-19.

In the case of AIC, four unvaccinated maintenance staff at a pair of commercial office towers claimed that the company breached their contracts by asking them to do jobs outside their normal remit, in a bid to remove them from direct contact with the public. AIC rejects the complaints, arguing that jobs that the workers were required to do were in keeping with contractual obligations.

The claims of the five employees of CariMed, a pharmaceutical distributor, who raised issues of health and religious belief, appear, like the Digicel matter, to go more fundamentally to constitutional rights and freedoms, than breach of labour contracts. These cases, therefore, should have particular resonance for the Government, for their outcome could shape how it pursues its own vaccine mandates.

Gordon Shirley, the chairman of the Government’s task force on vaccination, recently complained of the low vaccination rate among front-line public sector workers, including the police and health sector employees. Only half of nurses, for example, were vaccinated.

MANDATORY VACCINATION

Professor Shirley suggested that it was probably time to put in place a mandatory vaccination policy for health workers and other front-line employees, failing which workers would have to test regularly for COVID-19. It is a route Prime Minister Holness had previously indicated that his administration was preparing to take, but without providing a specific timeline, except that it would happen after a public education campaign.

“Those who don’t take the vaccine remain the host population for the reproduction and mutation of the virus,” he lamented last month. “The consequence is that the people who would have taken the vaccine will face the potential of being affected by the mutated virus, for which the original vaccine they took would not be as effective.”

In other words, unvaccinated people posed a greater danger of exacerbating a public health crisis, for which, according to Mr Holness, countries with constitutions similar to Jamaica’s “have implemented measures to differentiate between those who are vaccinated and those who are unvaccinated”.

Obviously, it would be if the Government knew, or had a good idea, of the parameters within which it would be allowed to operate before it declares its mandates. Joining the cases now before the court, if permitted, would allow it to help frame the legal arguments rather than merely respond to challenges after the fact.