The Department of Industry and Employment Relations (DIER) has finally given more details on what a business should do if an employee refuses to get vaccinated.

The latest COVID-19 measures, which came into effect on 17th January, require customer-facing employees at establishments such as bars, restaurants, gyms and casinos to be in possession of a valid vaccine certificate.

And while the Government has since announced the repealing of this requirement for most establishments, some, such as games halls, nightclubs and casinos, were not included in the repeal.

The DIER’s customer care service is open to both employers and employees who have queries and complaints regarding conditions of employment.

However, since the law was announced, has received various reports of businesses phoning DIER for advice on the matter, only to be told that they were unable to give specific advice, and to call 111 – the health authorities’ COVID helpline – instead.

When contacted for comment, a spokesperson for the DIER said:

“DIER’s advice is that the employer undertakes a risk assessment of the place of work to determine whether the employees in question have direct contact with clients. If the risk assessment determines that there is a risk to employees and /or clients,  the employer should seek to provide unvaccinated employees alternate employment such as duties that do not entail direct contact with clients, or where possible, remote working. If this is not possible, legal advice should be sought so as to seek the best way forward as these will relate to particular cases in specific workplaces. Moreover, it is advisable that employers establish internal policies so that mandatory obligations are observed.”

While the department’s comment does leave room for interpretation, this newsroom understands that there are some situations where an employer, who is unable to redeploy an unvaccinated staff member to a non-client facing role, and where COVID risks are deemed to be high, could potentially be within their rights to let go of such a staff member.

Asked to give a legal perspective on the DIER’s advice, lawyer Matthew Brincat confirmed that the first thing a business should do before taking any action against an employee is to consult an expert to better understand the risks being faced.

“As a minimum, a business could ask employees who do not want to take the vaccine to take very regular swab tests. However, the best preventative measure is social distancing, and in various workplaces, like a restaurant, factory or onboard a passenger plane, this isn’t possible.

“While a one-size-fits-all approach is not desirable, in situations such as these I would argue that the risks to a business’s operations, its staff and its customers trump an individual worker’s right not to get vaccinated,” he said, stressing that this should be the exception, not the rule.

Asked if an employee could challenge this decision, Dr Brincat noted that, those who insist on not getting vaccinated always use the same two arguments: ‘I have a right to work’, and ‘I have a right not to put things into my body that I don’t want to’.

“Firstly, the concept of the right to work is being taken completely out of context. From a human rights perspective, the right to work is aimed at jurisdictions where entire races or other groups of people aren’t allowed to work at all.

“As for the right not to put things in your body that you don’t want to, that’s fair enough. But an employer can insist on their own rights too. From a legal perspective, you always have to look at the balance of rights,” he said.

While emphasising that Malta’s health authorities had done a “fantastic job” overall, Dr Brincat said the confusion surrounding the vaccine mandate could have been avoided.

“The problem started because, unlike other countries such as Italy, the Government did not take a firm stand and say that you need to be vaccinated in order to go to work. Instead, they left everything in the hands of the employer.

“I think organisations like the DIER, the Occupational Health and Safety Authority (OHSA) and the Ministry for Health should have come together and come up with proper guidance for employers to tell them what to do. Lack of guidance results in confusion, and both employers’ associations and unions coming out with statements that may be misguided,” he said.

And while earlier this week the Government announced that, from the first week of February, most establishments will no longer be required to ask their customers for their vaccine certificate, it remains to be clarified whether this also applies to employees.

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