The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The National Tripartite Council (NTC) will meet today to develop a common position on whether employees should be made to pay for COVID testing amid fears the issue will explode into heated legal battles.

Robert Farquharson, vice-chairman and chief operations officer for the body created to resolve all workplace-related issues, told Tribune Business there has been “a significant increase” in inquiries from Bahamian workers as to whether their employers can require them to pay for weekly tests.

Confirming that some of the largest Bahamian employers are the subject of these concerns, Mr Farquharson said he expected the issue to boil over into litigation “in the very near future” after the likes of Atlantis warned that unvaccinated staff will have to pay for a weekly rapid antigen test to confirm they are infection free with effect from yesterday.

However, Tribune Business previously reported that the Health and Safety at Work Act forbids employers from imposing any financial “levy” on staff to ensure they comply with this law’s stipulations. The Act’s section nine effectively bars companies from requiring non-vaccinated staff to pay for COVID-19 tests out of their own salaries.

The section states that “no employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any of the provisions of this Act”. While employers can still require non-vaccinated worker to take regular tests, the law seemingly requires the company - and not the employee - to cover the costs associated with this.

Concerns have also been raised that requiring workers to pay for their own weekly tests amounts to unilaterally varying the terms and conditions of a worker’s employment, which is forbidden by law, while Mr Farquharson said the $22.50 cost of a rapid antigen test could push minimum wage workers below the statutory minimum for $210 weekly take home pay if they - not the company - have to cover the cost.

“We have received an increase in inquiries from employees who are concerned that their employer is enacting new policies requiring employees to pay for COVID-19 tests,” he told this newspaper. “The number of companies, those we have identified, are in the double digits.

“The National Tripartite Council is poised to develop a position on this as early as tomorrow [today] and we hope to make a public statement on this in the very near future. The National Tripartite Council will be trying to come up with a formal position on this as early as tomorrow.”

Sticking to the position that the Health and Safety at Work Act’s section forbids employers to require that their staff must pay for COVID-19 tests if they remain unvaccinated beyond a certain date, Mr Farquharson said of the National Tripartite Council’s efforts: “We hope that persuades employers to rethink their position.

“We know there will be possible litigation on this matter in the very near future. We expect that litigation is coming in the very near future. The National Tripartite Council has a 24-hour hot line, a What’s App number, where we field questions from the public. We have had a significant increase in inquiries.”

Mr Farquharson said The Bahamas’ biggest employers had been the subject of these concerns, naming Atlantis, Baha Mar, Super Value, Baker’s Bay in Abaco, Aquapure and the Teachers and Salaried Workers Cooperative Credit Union as being involved along with restaurants and hotels in the Family Islands.

Super Value yesterday said it had set an end-September target for its staff to become vaccinated otherwise they would have to take the weekly rapid antigen test to confirm they were COVID-free. Mr Farquharson added: “Ironically we have had a number of businesses that have reached out to the National Tripartite Council.

“We’ve had discussions with them, and they’ve decided not to force employees to pay for testing. They’ve got to pay for the testing themselves. This is a major issue. If you have somebody making the minimum wage of $210 per week, and they are mandated to pay $22.50 for a test, it means they’re taking home well below the minimum wage.

“This could be very disruptive because the trade unions, particularly the Bahamas Hotel, Catering and Allied Workers Union (BHCAWU), the National Congress of Trade Unions of The Bahamas, and the Trades Union Congress, have taken a very keen interest in this and I expect them to make some strong public statements on this very soon.”

It is unclear, though, whether the National Tripartite Council will achieve a consensus today. Peter Goudie, the private sector’s representative on the body, told Tribune Business yesterday it was “not taking a position” on the mandatory COVID-19 testing issue and was waiting for the outcome of litigation already before the courts.

“Let the courts decide what’s the right thing,” he argued. “We’re not going to take a position if something is before the court. Let the courts decide.” Other observers may argue that mandating unvaccinated employees to take a weekly test is the only way employers can protect themselves, their businesses, other staff and customers given the considerable hesitancy that remains to become inoculated.

Darrin Woods, the BHCAWU’s president, told Tribune Business that “the Government cannot sit idly by and let employers willy nilly” make testing mandatory for unvaccinated staff when it was its responsibility to enforce the Health and Safety at Work Act.

“There’s no requirement in law for someone to take a COVID test for employment,” he said. “If I am already employed with you, you cannot change my terms and conditions of employment without me agreeing to do so....They cannot use your job as leverage. That’s not somewhere for me to work, and you are causing me to work under duress.”