On March 11, 2020, the World Health Organisation (WHO) declared the coronavirus disease (COVID-19) outbreak a global pandemic. Since then, the world has not remained the same, as COVID-19 single-handedly unified world countries, toppled the global economic landscape, and redefined health and safety regulations for the global workforce. The unprecedented attention and policy responses directed at COVID-19 largely stem from the universal awareness of the deadly and transmissible nature of the virus, in all its variants. We have long acknowledged that with the presence of COVID-19, every aspect of our lives is at stake. And with this knowledge, the world has been in turmoil, leaving world leaders and decision makers scrambling for a way to mitigate the effects of the virus in their own corners of the world. Moreover, deeply concerned about the unknown risks of an extended pandemic with cross-border infection, governments, healthcare providers, and researchers have, in the past one year, spared no effort in developing preventive measures to adequately respond to the pandemic – with the best yet being the COVID vaccines.
According to the International Health Regulations Emergency Committee, the COVID-19 vaccines help in reducing the risks of severe diseases and death due to COVID-19, but they do not completely eliminate the risk of transmission of SARS-CoV-2 (all variants)1 . Still, the COVID vaccines appear to be a more permanent solution for the pandemic. It is arguably the most essential tool in the fight against the virus, as it helps arm the body with the necessary defences to guard against the infection and transmission of this lethal disease. According to WHO, these vaccines have undergone several clinical trials and have been proven safe and effective by many independent scientists and medical practitioners. Today, with the support of the Nigeria Centre for Disease Control (NCDC), approximately 19 million vaccine doses have been administered in Nigeria. Sadly, as impressive as this may seem, it still leaves over 195 million people unvaccinated and exposed to the risk of contracting the disease and infecting the entire populace. The focus of this paper is to examine the role of employers in this fight against COVID-19, and their rights to lay-off or sanction employees who neglect, fail or refuse to get vaccinated.
Section 17(2) of the 1999 Constitution of the Federal Republic of Nigeria expressly provides for the rights of citizens to a safe work environment. It imposes a duty on the State to ensure that policies are directed towards ensuring that the health, safety, and welfare of all persons in employment are safeguarded and not endangered or abused. In the same vein, employers are obliged to strictly safeguard the lives, safety, and health conditions of all employees in their work environments. This fact has been reinforced by numerous legislation2 and even international treaties, many of which Nigeria has ratified. For example, Article 16 of Convention 1553 provides that employers have a duty “to ensure, so far as is reasonably practicable, that the workplace under their control is safe and without risk to health”. Failure to meet this obligation may give rise to numerous lawsuits on grounds of negligence and even occupational liability. Furthermore, the Employee Compensation Act 2010 has gone further to make provisions holding employers responsible and accountable to employees for any death, injury, disease, or disability that they may suffer in the course of their employment. Thus, keeping diligent employers alert and well informed about the latest disease response plans, particularly in this era of COVID-19.
In this context, Nigerian employers must consider what measures can legally be taken to protect their workplace. Employers may consider various measures such as: social distancing, personal protective equipment, and vaccination requirements. At the same time, some employees may have strong opinions or views on why they do not wish to get vaccinated. Other employees may have religious reasons or health related issues that preclude them from getting vaccinated. Thus, balancing COVID-19 protections with workers’ rights is a difficult and unprecedented circumstance that many employers are currently facing.
From the foregoing, it goes without saying that employers are under statutory obligation to put in place meaningful and effective health and safety measures to protect all employees remaining at or returning to work. However, this begs the question: can employers then insist on vaccination as a part of their COVID response plans? COVID-19 is indeed contagious and deadly, but can the right of employees to work in a safe environment be legally protected at the expense of their fundamental human rights?
According to Section 17 of the 1999 Constitution of Nigeria, the social order is founded on the ideals of freedom. This means that the country itself is built on the rights and liberties of persons, and the constitution guarantees to every person individual autonomy, without any form of undue interference by the State or its agencies. This provision is reiterated under Section 35 of the Constitution, which provides that “every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…except in accordance with a procedure permitted by law”. In other words, all persons (employees inclusive) have the freedom to make decisions concerning their lives and decide whether or not they want to be vaccinated.
This freedom of choice is particularly important, especially considering the far reaching consequences that the doses of vaccine may have on the health of employees, should anything go wrong. It is for this reason that Rule 19 of the Code of Medical Ethics of Nigeria insists on informed consent even in printed and written form, before any form of medical intervention is made on a person.
Additionally, the law recognises the rights of employees to refuse all kinds of health services, treatments, or even medical experiments, if they wish to, and as long as they are comfortable with the consequences such refusal may have on their health conditions. This fact can be seen from the provisions of Section 23 of the National Health Act 2014.
Moreover, the fear and distrust of the vaccine has introduced a really high level of scepticism, even among educated Nigerians. Although, a good number of medical experts and international organisations like WHO, have assured the world that the COVID vaccines in question meet the international benchmark for safety and effectiveness, millions of Nigerians remain doubtful about the effects of these vaccines in the human body, particularly when they think about how quickly the vaccines have been developed to respond to a novel disease with many variants. Of course, whether or not Nigerians are right to be so cautious is not relevant here, since every employee is entitled to his freedom of opinion, thought, and conscience pursuant to Section 38 of the Constitution. Rather, what is really relevant, is the fact that the issue of vaccination goes beyond the office environment and encroaches on vital fundamental rights like the rights to privacy, liberty, freedom of thoughts, conscience and religion, freedom of expression, and even the freedom of movement. Consequently, a derogation from these fundamental rights can only be done with recourse to the law.
Notably, Article 27 of the African Charter provides that the rights and freedom of each individual shall be exercised with due regard to the rights of others, collective security, morality, and common interest. Similarly, Section 45 of the 1999 Constitution of Nigeria provides to the effect that the fundamental rights contained in Chapter IV of the Constitution may be derogated from where such derogation is “provided by law” and is in the “interest of public health”, or for the protection of the rights and freedoms of other persons. In other words, these rights are not absolute and can be restricted where the law so provides, or the rights of other individuals are at stake. In a plethora of decisions4 , the African Court has held that the term “provided by law” or “within the law” as seen under the African Charter and the Nigerian Constitution, essentially means that the restriction must: i) be prescribed by law; ii) serve a legitimate purpose, and iii) be necessary and proportional as may be expected in a democratic society.
According to the Siracusa Principles, a limitation is prescribed by law if it is pursuant to a national law which is in force at the time the limitation is applied. This fact was upheld by the African Court in the case of Media Rights Agenda v. Nigeria5. In Nigeria’s situation however, there is currently no enabling law in force, which mandates or gives employers the power to mandate employees to be vaccinated, let alone limit the rights of employees to work or visit their workspaces without being vaccinated. There has equally been no directive or circular either from the Federal Government with respect to compulsory vaccination of employees in the private sectors of the economy and by extension, of the citizens of Nigeria. What we have is a directive from the Chairman of the Presidential Steering Committee (PSC), Mr. Mustapha, requiring all federal government employees to show proof of COVID-19 vaccination or present a negative COVID-19 PCR result, before they can gain access to their offices. Despite criticisms that have trailed the directive, the Federal Government has insisted that its decision was in the best interest of Nigerians.
With respect to the second requirement of serving a legitimate purpose, limiting the rights of unvaccinated employees to have access to their office spaces indeed passes with flying colours. This is because such a measure seeks to safeguard all staff from possible infection and/or transmission of COVID-19, and that in itself is a legitimate aim.
However, there remains the final leg of the test, which is that the limitation must be necessary in a democratic society. In interpreting the human rights provisions under the African Charter, the African Court, in Constitutional Rights Project v. Nigeria6 , held that the justification of limitations must be strictly proportionate with and absolutely necessary for the advantages which follow. Most importantly, a limitation may not erode a right such that the right itself becomes illusory. In the instant case, the main advantages of having vaccinated employees include: a reduction in the chances of being infected with COVID-19; additional protection against diseases; and the freedom to travel internationally without much restriction. Now in line with the necessity requirement, “is it really necessary to restrict the fundamental human rights of employees at their workplaces to gain these benefits?”; “is mandating employees to be vaccinated a foolproof plan to prevent the spread of COVID-19 among employees?” These questions can only be answered in the negative.
That said, it is important to remember that the requirement of necessity is intertwined with proportionality7 . This means that the measure adopted must be appropriate to achieve the desired protective function; it must also be the least intrusive method, among those which might achieve the same protective function and; it must be proportionate to the interest sought to be protected8 . In this situation however, many would agree that there are far less intrusive methods for achieving a fully vaccinated workspace, one of which is social dialogue. In other words, limiting the rights of employees to work, or violating their rights not to be penalised for their opinions about the COVID vaccines, cannot be considered necessary in a democratic society, under the current circumstances.
The International Labour Organisation (ILO), in its Employment and Decent Work for Peace and Resilience Recommendation9 , emphasised that crises response strategies need to ensure respect for all human rights and the rule of law, including respect for fundamental principles and the rights of work, and for international labour standards. Furthermore, it recommends the implementation of comprehensive strategies for promoting peace, preventing crises, enabling recovery and building resilience that include: stabilising livelihoods and income through immediate social protection and employment measures; promoting social dialogue and collective bargaining; among many others.
The situation is however different in the case of health workers who have frequent contacts with patients and visitors. According to the WHO, in its COVID-19: Occupational Health and Safety for Health Workers 2021 Interim Guidance, employees in the health sector should follow established occupational safety and health procedures, avoid exposing themselves or others to health and safety risks, and participate in employer-provided occupational safety and health training. They are also expected to monitor themselves for signs and symptoms of COVID-19, so as to prevent onward transmission to other persons.
Additionally, as part of international best practices, employers are advised to note the provisions of Article 4(15) of the 2018 General Data Protection Regulation (GDPR) and Section 1.3(xxv) of the 2019 Nigeria Data Protection Regulation (NDPR) which are to the effect that the vaccination status of employees constitute sensitive and strictly personal data, which can only be processed in line with the afore-cited data protection regulations. Consequently, employers should be mindful of how they collect, store, and/or use the vaccination information of their employees, especially where such usage will amount to publications, sanctions, and/or discrimination.
First, Employers should educate their employees on the benefits of taking the vaccines which will generally provide a safe working environment for all employees and reduce employees' risk of contracting COVID-19.
Second, Employers should encourage open communication, social dialogue and collective bargaining with regards to COVID-19 vaccination in order to facilitate a safe and positive working environment during these challenging times.
The last but not the least, for employees covered by the Nigerian Labour Act, the conducts of the employers should be governed by the terms of the contract. Thus, if the employee has a contractual obligation to comply with all applicable health and safety measures, including taking of vaccine where necessary, failure to obtain the vaccine will be a breach and entitle the employer to terminate the employment contract. Employers are therefore advised to review the contracts of employment and/or the employee handbook to provide for mandatory vaccination of the employees.
Having said that, in providing for the mandatory vaccination of employees, it is very important for employers to take into consideration the possibility of serious adverse reactions in the employees. So far, the COVID vaccines have been reported to have side effects ranging from minor fever, headaches, muscle pains, and fatigue, to dangerous chest pains, shortness of breath, seizures, anaphylaxis, and even death. Employers must therefore consider their willingness and readiness to take responsibility for mandating vaccination in their workspaces, particularly when the employees have disclosed certain underlying health conditions, or pregnancy status, or even peculiar ethnic or religious beliefs.
Mandatory vaccination policies in the workplace are not legal in Nigeria as there is no enabling law in the country which empowers employers to insist that their employees should be vaccinated, and the insistence on the same will result in a breach of the fundamental rights of the employees. At the same time, employers in Nigeria are obligated to ensure that workers are provided with a safe environment. Thus, balancing COVID-19 protections with workers’ rights is difficult. It is therefore imperative that all parties work together collaboratively to create healthy working environment with the same goal in mind, keeping the environment as safe as possible. Furthermore, employers in Nigeria are advised to review their contracts of employment and/or the employee handbooks to clearly provide for mandatory vaccination of the employees, and where possible, with well-considered exceptions.
heading