Introduction
On Thursday August 5, 2021, Parliament will debate, and be asked to approve/pass, the Public Health (Amendment) Bill 2021. Given the extent of the misrepresentations, and misinformation by some persons about this Bill, it is necessary and desirable to put the record straight. Emphatically, the Bill does not make mandatory or compulsory the vaccination or testing of persons in respect of COVID-19. The Bill, too, does not involve any legal penalty or punishment on anyone who fails and/or refuses to take the vaccine or test for COVID-19.
It is the intention of the Government, however, to make rules under the Public Health Act to require certain categories of employees in the public sector (central government and state enterprises) to take the vaccine in order to work in certain specified “frontline” jobs. The choice of working or not working in a particular job which requires vaccination in the interest of public health will be that of the employee. Individual rights are always required in the appropriate circumstances to be balanced by public interest considerations, in this case the requisites of public health. The relevant rules under the Public Health Act will be made and published in due course in the Official Gazette.
For public servants the usual and relevant Public Service Regulations will be applicable in all material circumstances.
The explanation below is a summary of the legal rationale and objective of the amendments to Section 43B (2) (a) of the Bill, as provided by the Attorney General’s Chambers.
The Public Health (Amendment) Bill 2021 will amend Sections 2, 27B and 43B (2) (a) of the Public Health Act, Chapter 300.
Rationale for amendment to Section 43B (2) (a)
Section 43B of the Public Health Act was inserted by the Public Health (Amendment) Act 2020, No. 6 of 2020. Section 43B empowers the Minister to declare a public health emergency on the advice of the Chief Medical Officer. Where a public health emergency is declared, the Minster can, on the advice of the Chief Medical Officer, implement special measures to mitigate or remedy the emergency. One of those measures include establishing a voluntary immunization program for Saint Vincent and the Grenadines or any part of Saint Vincent and the Grenadines.
Clause 4 of the Bill would amend Section 43B (2) (a) of the Act by removing the word “voluntary” that appears before “immunization”.
The Public Health Act, which was enacted on the 22nd of April 1977, already contemplates that the Minister can impose mandatory vaccination in Saint Vincent and the Grenadines to prevent, control or suppress a communicable disease. This power to impose mandatory vaccination is prescribed by Section 37 (d) of the Public Health Act which reads as follows –
- Whenever any part of Saint Vincent appears to be threatened by any formidable epidemic, endemic or communicable disease, the Minister may make rules for all or any of the following purposes, namely –
(d) preventing any person from leaving any infected area without undergoing all or any of the following, namely, medical examination, disinfection, inoculation, vaccination or revaccination, and passing a specified period in a place of observation;
After considerable thought, it is believed that it is necessary to make Section 43B (2) (a) of the Act consistent with Section 37 of the Act by deleting the word “voluntary” that appears before “immunization”. This is to, among other things, circumvent any potential argument that Section 43B (2) (a) as currently written restricts the operation or implementation of Section 37 (d) or any other provision of the Act.
Vaccination
The common law imposes on the Government a duty to take reasonable care to protect the health and safety of its employees and others. As part of this duty, the Government has to ensure that any place in which an employee works is safe. This is particularly relevant in the current circumstances of a pandemic and for the duration of the declared public health emergency.
In order to honour this duty, the Government will by rules to be made under the Public Health Act, impose a requirement for vaccination (with at least the first dose in the case of a vaccine that requires two doses) on those public sector employees who have been employed to work in workplaces the Government considers to be high-risk environment. These frontline employees would be exempt from the requirement for vaccination on two grounds. First, on the ground that vaccination is not advisable on medical grounds and secondly if the employee objects in good faith that the vaccination is contrary to his religious beliefs and the employer is able to make alternative arrangements to accommodate the employee.
Dated the 30th day of July, 2021.
Dr. The Hon. Ralph E. Gonsalves
Prime Minister and Minister of Legal Affairs
