The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The National Tripartite Council’s vice-chairman yesterday warned “a lot of employers are going to be very upset” to find they cannot mandate non-vaccinated staff pay for their own weekly COVID-19 tests.

Peter Goudie said “the law’s the law” in confirming that the Health and Safety at Work Act forbids employers from imposing any financial “levy” on staff to ensure they comply with its stipulations.

While the Council has yet to adopt any formal position on the matter, Mr Goudie said he and its chairman Robert Farquharson, had discussed the matter and agreed that 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, Mr Goudie confirms that the law requires the company - and not the employee - to cover the costs associated with this.

“It’s the law. It is what it is,” the head of the Bahamas Chamber of Commerce and Employers Confederation’s (BCCEC) labour division told this newspaper. “It says you can’t do that, and employers are going to have to factor that in.

“I’m sure there’s a lot of people who don’t like it or do not agree with it, but if that’s the law of the country it is what it is. It’s the law of the land, and you’re going to have to follow it. I’m sure there are a lot of employers that are going to be very upset, but if it’s the law, it’s the law. There’s nothing else I can say.”

While the cost burden for COVID-19 employee testing must now be absorbed by the employer, as opposed to the employee, Mr Goudie said this development - and the fact companies also cannot make it mandatory for workers to become vaccinated - will likely result in changes to contracts for new hires going forward.

“What it’s going to do is make employers put different rules in for new employees,” he told Tribune Business. “That’s what it’s going to force employers to do. You can’t change the rules after the fact, but you can change the rules for new employees. That’s what’s going to happen.”

Mandating that existing workers take the COVID-19 vaccine amounts to an arbitrary, one-sided alteration of their employment terms and conditions, which breaches Bahamian law and will likely result in multiple legal actions at both the Industrial Tribunal and Supreme Court level.

However, Mr Goudie urged all Bahamians “to get vaccinated to save themselves just like the Prime Minister keeps saying, and he’s right. People need to get vaccinated even if the Government said you can’t force people to do so. We’re in difficult times, and people need to get vaccinated. That’s a fact.”

The effect of the Health and Safety at Work Act’s section nine is to remove a tool employers had been counting on to incentivise staff to become inoculated, given that many would likely have become tired of paying for a weekly test out of their own pocket.

Tribune Business had reported last month how CBS Bahamas (Commonwealth Building Supplies) had told staff it will only pay for the rapid antigen test costs for non-vaccinated staff until August 16, after which they will have to cover the $22.40 weekly cost themselves.

In its staff letter, dated June 18, the company said: “As The Bahamas continues to struggle with the COVID-19 pandemic, we at CBS Bahamas must take the steps necessary to protect both our team members and our customers....

“Effective July 1, any employee that has not received the COVID-19 vaccination will be required to submit to a weekly COVID-19 rapid antigen test. These tests will be administered by Doctor’s Hospital at the Town Centre Mall drive through location and will be paid for by CBS Bahamas.”

The company added that employees who receive their first vaccine jab will no longer be required to take the rapid antigen test some two weeks after that date, but it then said: “Effective August 16, 2021, the above weekly testing will still apply but CBS Bahamas will no longer bear the costs of these tests and employees will be responsible for this cost which at present is $22.40 per week.”

This it cannot do, and the company will have to continue paying for employees’ tests if it persists with this policy. Brent Burrows, CBS Bahamas president, could not be reached for comment yesterday.

Meanwhile, John Pinder, director of labour, said he and Mr Farquharson were “of the same accord” when it came to the Act’s section prohibiting employers from mandating that workers pay for COVID-19 tests.

“The Act speaks to the responsibility for health and safety in the workplace,” he told this newspaper. “It is not the responsibility of the employee; it is the employer’s responsibility. The employer cannot charge anyone for safety measures. They cannot make it mandatory, and nor can they make it mandatory for everybody to take the vaccine.”

Mr Pinder, though, said “it appears that the employers are becoming a little more reasonable” as the number of complaints being made to the Department of Labour on the matter are now “not as bad as they were in the beginning”.