NO COVID JAB, NO SUPERMARKET JOB

Supermarkets in Cayman are joining an increasingly global trend requiring job applicants to show proof of COVID vaccination.

In a joint statement, Foster’s Supermarket, Priced Right, Kirk Market, Hurley’s Marketplace and Cost-U-Less Grand Cayman have announced that effective August 9th, 2021 they will require all job applicants to have verified proof of vaccination to be considered for employment.

Additionally, work permit renewals will only be processed for vaccinated team members.

The supermarkets say their decision supports the Government’s re-opening plan introduced in June 2021, which aims to see 80% of the country’s population vaccinated by September 9th, 2021.

“This joint COVID Staffing Policy will play a role in helping the Government achieve its vaccination goal to protect public health,” the statement adds.

It goes on to state that as essential businesses, the local supermarkets employ a significant portion of the local workforce to ensure the country’s food supply chains are uninterrupted and secure. We must unite on the vaccination requirements across all stores to protect our dedicated staff and valued customers.

According to the participating supermarkets, “vaccination rates amongst current supermarket staff have been excellent, as many of Cayman’s supermarkets have been facilitating staff vaccinations since February 2021, and we hope that these steps will give everyone greater peace of mind.”

The supermarkets say they are currently working with their respective leadership teams to amend internal policies and plans, in alignment with the government’s re-opening timeline, to include points such as mask requirements for team members, social distancing, increased store sanitation, etc.

They also encourage the community to come together and understand the importance of being vaccinated for the safety of loved ones and yourself.

“While vaccine hesitancy and misinformation are hurdles across the globe, it’s important to be informed before getting vaccinated. It’s even more important to source information from reputable, verified news sources, including the Cayman Islands Government website or social media pages, the World Health Organization website, the UK National Health Service (NHS) website, or the Centers for Disease Control and Prevention (CDC) website.”

They state that as the Government begins to re-introduce tourism and travel for the Cayman Islands, that they will continue to monitor and follow all health and safety guidelines provided by the Health Services Authority, and will provide updates as new information is received.

While the joint policy relates to proof of COVID vaccination as a prerequisite for job applicants and work permit renewals, it was not clear if this also extends to current staff who might not be vaccinated.

The requirement for proof of COVID vaccination for employment as well as entry into some businesses and countries is becoming a policy feature of many governments and businesses around the world, but it has also attracted considerable controversy.

FREQUENTLY ASKED QUESTIONS

Meanwhile the Cayman Islands Department of Labour and Pensions has published a list of Frequently Asked Questions (FAQs) of concerns related to vaccination certification.

However it includes a disclaimer that it’s for “general information purposes only” and that the public “should not rely upon the material or information in this document to make any business, legal, or other decisions.”

The document which can also be viewed on the department’s website says: “To assist the general public with general guidance as it relates to the COVID-19 vaccine and the potential impact that this may have on existing and potential employees the Department of Labour and Pensions has identified the following frequently asked questions.”

1. Would it be unreasonable for an employer to require an employee to have the vaccine?

• The Cayman Islands do not have regulations in place concerning compulsory vaccination.

• Employers have a general duty to take reasonable steps to maintain a safe work environment for employees; however, there is no provision in the Labour Act (2021 Revision) regarding the protection of employees from the transmission of communicable diseases.

• To assist employees in making an informed decision, employers should educate their employees with independent, factual information about the risks associated with the COVID-19 virus and the specific impact on the workplace.

• Employers should assist employees by explaining the benefits of vaccination, and encourage and employees to be vaccinated.

• Consideration should also be given to whether mandatory vaccination is a reasonable way to deal with the potential risk of exposure to the virus in specific circumstances and whether alternative measures could be taken to mitigate any such risk.

2. Would it be unreasonable for an employer to include a requirement to be vaccinated as part of company policy?

• A requirement for vaccination might be a reasonable measure depending on the nature of the business.

• While employers have a legal responsibility to ensure the health and safety of their employees as far as reasonably possible, engaging in a policy to mandate vaccination could raise several legal issues, for example, where an employer took punitive or disciplinary action if an employee refuses to be vaccinated or discrimination is alleged.

• Employers who are keen for their employees to be vaccinated but do not have any contractual right to mandate that they do, should obtain the employee’s consent.

• It may be more practical for employers to introduce mandatory vaccination as part of its hiring practice rather than amend the agreements of existing employees.

• Employers should ensure that new hires are made aware of this requirement prior to employment.

• Employers should assess the nature and needs of their businesses and be cautious about treating job applicants differently because of their vaccination status.

• Consideration should be given to potential legal exposure and other risks associated with the implementation of a mandatory vaccination policy

3. Can an employee refuse to take the COVID19 vaccine?

• There are currently no regulations in place concerning compulsory vaccination.

• Some employees may have a legitimate basis for declining the vaccine irrespective of their work environment.

• Even where there are certain elevated health and safety risks due to the nature of the job, employers need to balance this against their ability to mitigate the safety risk posed.

• Where an employer has the contractual right to require an employee to get vaccinated and the employee refuses, the employer may be able to take disciplinary action as the employee may be in breach of contract.

4. Additional Considerations

(Data Protection)

• Employees’ vaccination status is medical data and therefore constitutes “sensitive personal data” for the purposes of section 3 of the Data Protection Act (2021 Revision)

• Employers that wish to maintain a record of employees having been vaccinated must do so in accordance with the Data Protection Act (2021 Revision).

• Employers must ensure that employees are made aware of “why” the data is being collected, “who” will see it, and “how” the data will be used.

The processing of the data must comply with the data protection principles and the conditions for fair processing applicable to sensitive personal data. It is likely that the employee’s consent would need to be sought prior to the processing of their sensitive personal data.

• Employers should also ensure that they only receive information which they absolutely need.

Voluntary Vaccination

The Cayman Islands Government is currently offering the COVID-19 vaccine voluntarily. While it is encouraged that the vaccine is taken, persons are allowed to decide whether they wish to be vaccinated