The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Cabinet minister has warned the proposed COVID-19 rules are too “inflexible and draconian”, and threaten to “create hardship” for businesses and citizens unless amended.

Dr Duane Sands, ex-minister for health who held the post at the start of the pandemic, told Tribune Business that both the language and details of the Health Services (COVID-19) (General) Rules 2021 and accompanying Health Services (COVID-19) (Prevention and Management of Community Spread) Rules 2021 needed to be adjusted “to make it make sense”.

Otherwise he warned that the newly-elected Davis administration would face significant push back from the Bahamian private sector and wider society, and could create “a number of coconut water seller scenarios” - a reference to road-side vendors who were arrested and prosecuted during COVID-19’s peak for allegedly operating without a licence and in breach of health protocols.

Dr Sands cited several concerns with both sets of rules, which were tabled in the House of Assembly last Monday by Dr Michael Darville, minister of health and wellness. In particular, he pointed to section 8 (2) (a) of the Health Services (COVID-19) (General) Rules, which state “every business shall ensure that all customers and staff maintain physical distancing between themselves and others of not less than six feet while inside or awaiting entry outside the business”.

“The rules say that if you are a business person, you have to maintain a distance of six feet from your customer,” Dr Sands said. “How are you going to check someone out if they have to be six feet away from you? Do they throw money at you? There are some practical issues that make no sense.

“The policies sound very good, but you are putting in some very hoity-toity items that have little practical utility.” Similarly, pointing to ambiguities in the language that need to be cleared up, Dr Sand singled out section 9 (1) of the Health Services (COVID-19) (General) Rules that require persons to wear a mask every time they leave their residence.

This, he added, did not seemingly account for persons who may be leaving their parents or girlfriend/boyfriend residence, raising questions about whether such scenarios had been considered by the new COVID rules.

Chester Cooper, deputy prime minister, last week told the House of Assembly that the new COVID rules, which are designed to replace the former Minnis administration’s emergency orders, are not set in stone and that the Government was seeking feedback and suggested amendments to them.

The Bahamian private sector is understood to be especially concerned by parts of section 25 in the Health Services (COVID-19) (Prevention and Management of Community Spread) Rules 2021, which allow the minister of health - upon the chief medical officer’s advice - to “order the closure of any business due to an outbreak, spread or recurrence of COVID-19 or non-compliance with the COVID-19 protocols”.

While many of these measures have transitioned over from the COVID emergency orders, businesses are concerned about the amount of power concentrated in the hands of one minister; that the level of “outbreak, spread or recurrence” that warrants a closure is not defined; and that there is no timeline or “sunset” clause for when the closure will end.

Similarly, the COVID-19 rules require companies to prepare a health “protocol document” tailored to their own individual businesses. Non-compliance with this and the general COVID-19 measures can, at the third time of asking, result in a company’s business licence being suspended for up to three months.

“The principal was good, it’s progressive and I’m happy to see they’re moving beyond the emergency orders,” Dr Sands said of the proposed COVID-19 rules, “but there’s still work to be done on the language and specifics to make it make sense.

“The devil is in the details. These matters become so inflexible and draconian that they can be more harmful than intended.......... Let’s look at the language, have some people review them line by line to determine what is reasonable and what doesn’t impose an unreasonable burden on businesses but, at the same time, provide some level of protection.

“We want the legislation to have enough teeth to be effective but, at the same time, it cannot be so inflexible and so unreasonable that all you do is create hardship for people trying to conduct business in an ethical and reasonable fashion,” Dr Sands continued.

“We want to provide assurance they are complying with reasonable public health standards, but to maintain six feet between workers and the public is impossible. You cannot do it. Because it is not workable you are going to get situations where reasonable people say it’s not workable, this is nonsense and you find yourself at odds with reasonable people and create a number of coconut water seller scenarios. 

“Let us applaud the effort, but there needs to be a realignment of the rules, the regulations and the language. I think we ought to look at that again and perhaps be a little more reasonable with the language and we’ll get better adherence.”

Several sources suggested that many of the new COVID-19 rules’ requirements had been “cut and pasted” from the former emergency orders, and that the former was effectively only a name change. 

However, Dr Sands said: “I’m not suggesting that we scrap the transition but before this is completed in the House of Assembly and Senate, there ought to be a significant revision in a bi-partisan way to achieve something palatable and workable for the Bahamian people. I don’t think the first pass achieves either of the above.”

Tribune Business understands that the Bahamas Chamber of Commerce and Employers Confederation (BCCEC) is due to meet this week to discuss the COVID rules. One private sector source, speaking on condition of anonymity, said: “It appoints the minister and you don’t have the Competent Authority; that’s the effect of it, and you don’t see the difference. It’s very uncertain for businesses to deal with.”

Another added: “It’s a little over the top. You have to produce a protocol document or one written by the ministry. There’s just too much bureaucracy. There are so many if’s, and’s and but’s.”

Another business community member, also speaking on condition of anonymity, voiced concern that “there’s no end in sight” to COVID-19 restrictions based on the new rules. Nor was there “a sunset clause” in how long a business suffering a COVID outbreak will have to remain closed.

“It invests so much authority in the minister to dictate how business operate,” they said. “There was no mechanism to challenge it or go to the courts. There was no review mechanism. Who pays the people when a business has to close down? NIB? Is it a furlough? Is it a lay-off? If the business goes bankrupt or does not re-open after being forced to close, who accepts the liability for the employees?

“In this kind of economy that’s a serious blow, not only to the business but the economy. Let’s say it’s a supermarket. You’re shutting down a major food supplier.  Are they going to close a Kelly’s? I don’t think so. Are they going to close a Super Value? Does that mean they will only target small businesses? Is that fair? It’s a very open-ended Act and a real Pandora’s Box. There’s more questions than answers.”