Covid-19 vaccinations for crew open up areas of legal uncertainty

Cyprus-based legal firm Michael Kyprianou LLC has noted that, with people in Cyprus starting to receive a Covid-19 vaccine, many questions were being raised by employers and employees alike as to whether  employers can make vaccinations mandatory for their staff. Shipowners too were asking if they could compel seafarers on their vessels to get vaccinated, and what they can do if seafarers refuse.

The article also covers general points that are a matter of concern for shipowners and their insurers globally, when it comes to considering the legal situation surrounding the Covid-19 vaccine.

Andria Kouloumi of Michael Kyprianou said that another potential area of dispute was who would bear liability if a seafarer took the Covid-19 vaccine on the insistence of an employer, but suffered adverse consequences, or if a seafarer did not take the vaccine when offered, and as a result someone else suffered adverse consequences.

Can a shipowner compel seafarers to take the Covid-19 vaccine?

The Law has ratified the Maritime Labour Convention of 2006 as amended. This provides for minimum safety standards and the rights of seafarers. MLC 2006 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. But no expressed provision for seafarers’ vaccinations is included.

The Safety and Health at Work Laws require 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. Kyprianou said that “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 was the most reasonably practicable way of controlling the risk of Covid-19 then, in theory, the employer 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.

The Quarantine Law gives the Cyprus government powers to impose measures through regulations and decrees to prevent, control or mitigate the spread of Covid-19, terming it a dangerous infectious decease. However, no regulation or decree has yet made the vaccination mandatory.

“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”, Kyprianou noted.

Therefore it followed that no legislation was currently in force which could compel seafarers to get vaccinated.

Implementing new policies

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.

A Covid-19 vaccination could be a condition of an employment contract or by the amendment of an existing employment contract. 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, would need to 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 might 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.

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”, wrote Kouloumi..

The Contractual route

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. Being characterized as a dangerous infectious disease, the possibility of Covid-19 being considered a “necessary” vaccination by a majority of countries was high. This means that a seafarer could reasonably be required to get the Covid-19 vaccination where the existing contract included such provision. The same may apply for new contracts.

Instead of “obliging” the seafarers to get vaccinated through a contractual provision or a mandatory vaccination policy, shipowners should inform the seafarers in relation to the vaccine and encourage them to get vaccinated. 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.

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.

Kouloumi admitted that “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”.

Liability issues: Who would be liable for such vaccinations?

Another implication that might 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 various maritime laws and conventions, 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. In cases where the seafarer has voluntarily taken the vaccine as it has been offered, for example, by the seafarer’s home country authorities, then it is unlikely that the shipowner would be liable for any adverse consequences or any associated costs. 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.

Kouloumi concluded 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.

https://www.kyprianou.com/en/publications/the-marine-industry-in-cyprus-and-the-covid-19-vaccine/ppp-301/271/