The marine industry in Cyprus and the COVID-19 vaccine

The marine industry in Cyprus and the COVID-19 vaccine
13/03/2021 https://www.hellenicshippingnews.com/the-marine-industry-in-cyprus-and-t...

As COVID-19 vaccines become more and more available there are feelings of excitement and trepidation in equal measures. With people starting to receive the COVID-19 vaccines in Cyprus, many questions are being raised by employers and employees alike, particularly whether employers can force employees to be immunized. Likewise, similar issues arise from a marine perspective with many shipowners asking if they can compel the seafarers to get vaccinated, and what they can do if seafarers refuse. Another highly disputable issue is also that of liability: more specifically as to who would bear liability if a seafarer finally takes the Covid-19 vaccine or not.

The legal side: Can a shipowner compel seafarers to take the COVID-19 vaccine?

For the purposes of our review, the provisions of the Law of 2012 – Maritime Labour Convention, 2006 (Ratification) and for Matters Connected Therewith (the “Law”) have been taken into consideration. The Law has ratified the Maritime Labour Convention of 2006 as amended (the “MLC”), which provides for minimum safety standards and the rights of seafarers. The Law, amongst others, provides for the minimum obligations on shipowners and seafarers in relation to seafarers’ medical certificates and also for medical care on board ships and ashore. Nonetheless, no expressed provision for seafarers’ vaccination is included.

Looking into other pieces of national legislation, the Safety and Health at Work Laws (“the Safety at Work Law”) requires employers to take reasonable steps to reduce workplace risks. Under the Safety at Work Law, employees also have a duty to cooperate with their employer to reduce workplace risks. It would be a reasonable step, for the purpose of reducing the risk of COVID-19 in the workplace, for the employer to require employees to take the vaccine, as immunization of employees would likely allow for a return to ‘normal’ in the workplace. If an employer carried out a risk assessment and concluded that having a vaccine is the most reasonably practicable way of controlling the risk of COVID-19 then, in theory, he could order the vaccination as a health and safety requirement. Nevertheless, at this point in time, no authority is granted to the shipowners as employers, under the Safety at Work Law to compel a seafarer to be vaccinated.

Further, the Quarantine Law (Cap. 260) gives the government powers to impose measures through regulations and decrees to prevent, control or mitigate the spread of COVID-19 as a dangerous infectious decease. Nonetheless, no regulation or decree has made the vaccination mandatory until now. Most importantly, in accordance with the patient’s protection rights as provided through European legislation, a patient has the right to refuse or to halt any sort of medical intervention, whilst the obligation would rest on the medical practitioner to explain any repercussions to the patient of refusing or halting such intervention.
It follows from the above that no legislation is currently in force, compelling seafarers to get vaccinated.

Implementing new policies

In the absence of legislation, a shipowner cannot force an employee to be vaccinated. However, shipowners may choose to follow a legitimate route by implementing policies or contractual provisions through employment agreements for the purposes of addressing this issue. This, for example, could be accomplished by making the COVID-19 vaccination a condition of an employment contract or by amending an existing employment contract. It is the case that many shipowners have made it a provision of an employment relationship for the seafarer to have certain vaccines which are obligatory in countries to which the vessel might sail.

Looking into workplace policies, shipowners could also consider having in place strategies, procedures and policies concerning the Covid-19 vaccine. Notably, any workplace policy, including one that would mandate employees to receive the COVID-19 vaccination, shall be reasonably necessary and rationally connected to the workplace. For example, a mandatory vaccination policy could be deemed reasonably necessary if an employee is employed in the healthcare sector or is required to have frequent close contact with members of the public. In such a case, this requirement would be consistent with the employer’s duty of care to provide a safe work environment. However, such a policy may not be considered by everyone reasonably necessary for the shipping sector, especially in cases where seafarers do not have immediate contact with the public and where sufficient safety precautions are in place. Given this, shipowners should not assume that a mandatory vaccination policy is going to be legal. As noted above, before implementing such vaccination policy, shipowners should carefully consider the circumstances of the particular ship, the level of exposure to individuals who are especially vulnerable or at risk. Also, before implementing such policy, shipowners must be mindful of potential human rights implications which could arise, as well as the impact it could have on a seafarer’s privacy rights. Shipowners should carefully consider whether such a policy is truly necessary for their particular workplace and, if so, ensure that the policy takes all of these factors into account.

The Contractual route

Turning to contractual provisions, it is the case that, by practice, many seafarers’ employment agreements include clauses which set as a condition for seafarers the acceptance of “necessary” vaccines for the countries their ship might enter. As far as the COVID-19 pandemic is concerned, being characterized as a dangerous infectious disease, the possibility of being considered as a “necessary” vaccination by the majority of the countries is high. This means that a seafarer could reasonably be required to get the COVID-19 vaccination where his existing contract includes such provision. The same may apply for new contracts. That is to say that should the Covid-19 vaccine fall within the “necessary vaccination” provision or should the employer reasonably include it specifically as a term of the new employment agreement, then this would mean that the seafarers would reasonably be obliged to be vaccinated. On the contrary, this could not easily be applicable with regard to existing contracts which do not include a ‘vaccination provision’. It is possible that any amendments to the employment relationship for this purpose might not be considered valid in cases where seafarers would not wish to be vaccinated, taking into consideration the provisions of the employment law and the applicable regime in Cyprus. Nonetheless, instead of “obliging” the seafarers to get vaccinated through a contractual provision or a mandatory vaccination policy, shipowners should, in any case, appropriately inform the seafarers in relation to the vaccine and encourage them to get vaccinated.

In any case, though, if a mandatory policy is nonetheless necessary, shipowners should consider providing seafarers with a reasonable, non-disciplinary alternative to vaccination, such as allowing non-vaccinated seafarers to go on unpaid leave of absence when the risk of workplace transmission is particularly high. Further, for employees unable to be vaccinated for health reasons, disability, religion, or faith, shipowners might also be needed to provide appropriate accommodation and to ensure the protection of other crew members. Such measures might include providing for alternative duties, separate accommodation (where it is reasonably possible) and providing appropriate protective equipment. If such accommodation is not possible, or the vessel is unable to operate safely, an option for the shipowner would also be to remove from the vessel the non-vaccinated individual from the vessel, provided all contractual and other legal obligations to the individual are met.

At present, it is difficult to say what the correct approach should be. Much will depend on the individual shipowners who will now have to consider all the above-mentioned factors in their risk assessment process. In any case, in deciding whether to mandate a COVID-19 vaccination for seafarers, a shipowner must balance the right to refusal to be vaccinated of seafarers against the health benefits associated with the vaccination requirement.

Liability issues: Who would be liable for such vaccinations?

Another implication that may arise regarding seafarers’ vaccination is the matter of responsibility. Would the shipowner be liable for the costs and consequences of vaccinating seafarers, including any side effects? According to PART ΧVI of the Law (also Article IV of the MLC) and the Merchant Shipping (Minimum Requirements of Medical Treatment on Board Ships) law, seafarers shall at all times have access to medical treatment and should be protected from the financial consequences of sickness, injury or death occurring in connection with their employment. That is to say, if a seafarer is required by a shipowner to be immunized against COVID-19, then the responsibility would lie with the shipowner to ensure that a vaccine was offered and it would also be at no cost to the seafarer. Moreover, according to the provisions of the applicable laws, the shipowner shall also be liable and for any costs arising from illness or adverse reaction that might result from vaccination.

Things may nevertheless be different in terms of the shipowners’ liabilities in case the vaccine is taken voluntarily by a seafarer or is mandated by the seafarer’s home country. For instance, in cases where the seafarer has voluntarily taken the vaccine as it has been offered, let us say, by his home country authorities, then it is unlikely that the shipowner would be liable for any adverse consequences or any associated costs. This should also be the case in terms of the cost and liability if the COVID-19 vaccine is imposed by the authorities in the seafarer’s home country. Nonetheless, what happens if a seafarer gets ill while travelling to/from or on board the ship due to the vaccination quality or a reaction? In such a case, the seafarer should be treated as any other case of medical treatment being required by a serving seafarer, as provided in the law, regardless of the link to the COVID-19 vaccine. This means that in cases of adverse consequences whilst travelling to/from or on board that vessel attributable to the COVID-19 vaccine, the shipowner is obliged to react subject to the seafarer’s employment agreement and protect the seafarer’s health.

In conclusion, it follows from the above that many issues are uncertain and yet to be decided and assessed by the relevant authorities in order to provide effective guidance to the shipowners as to how they should respond to these challenges following the COVID-19 pandemic.
Source: Michael Kyprianou LLC