ICS published updated guidance to address legal, liability and insurance issues that could potentially arise for shipowners from or in connection with vaccinations of crew for COVID-19.
Informed and voluntary consent to the vaccination
accination requires an individual’s informed and voluntary consent. If an employee refuses vaccination, employers should consider the reasons given carefully.
Each case will need to be considered on its own facts and an individual response made accordingly. Depending on the particular circumstances, this response could entail implementing alternative solutions to protect the refusing employee and others in the workplace
This could include the use of personal protective equipment (PPE), additional social distancing measures and changing the employee’s work duties to reduce contact with other employees.
Ultimately, however if the employee’s presence in the workplace is deemed to pose a threat to the health and safety of the wider workforce, employers may consider not allowing unvaccinated employees to work.
Can a shipowner require seafarers to get a COVID-19 vaccine?
Under UK law, an employer cannot compel an employee to be vaccinated (or indeed to take any form of medication) if they do not wish to be so, as this raises issues of intrusion on an employee’s body and breach of their human rights on medical intervention under UK law and the European Convention on Human Rights. The same would apply for the COVID-19 vaccine.
The UK government has indicated that it does not plan to make the vaccine mandatory. Other countries may take a different approach and mandate certain vaccines to be compulsory (or demand proof of vaccination as a border or visa requirement.
Overall, though in view of the international nature of the typical crew list, it would be prudent to proceed on the basis that a seafarer cannot be compelled to get the vaccine but instead employers should encourage seafarers to do so for the reasons stated above
Notwithstanding the above, shipowners have addressed issues of vaccinations for crew members for certain specified types of illness even before COVID-19 outbreak. This has been done through the contractual route, by making it a condition of the employment contract with the seafarer to have certain vaccines which are required in countries to which the ship might sail. This has been regarded as legitimate and leaves the seafarer the right to decide whether he wishes to accept the employment on these terms.
Can a shipowner amend existing contracts of employment to require the seafarer to get a vaccine as a condition of employment?
It is unlikely that an employer could reasonably amend an ongoing employment contract to make it a requirement that an employee be vaccinated if this is against the employee’s wishes.
However, there are some sectors and job roles where employers might be able to argue that the person in that post needs to be vaccinated for health and safety reasons e.g. because social distancing is not possible.
Such a requirement would be in compliance with the employer’s duty of care to the workforce to provide a safe work environment. For example, this would particularly apply to those working in healthcare settings.
In some limited circumstances, employees could in fact be dismissed for refusing the vaccination if it means they will present a threat to themselves, patients or service users.
Should vaccination take place on board?
Currently COVID-19 vaccines can only be accessed through national, government-run vaccination programmes. The industry is reviewing ways for seafarers to obtain authorised vaccines in the near term and this may include vaccinations to take place on board under approved conditions.
Is the shipowner liable for the costs vaccinating seafarers?
If a shipowner requires a seafarer to be vaccinated against COVID-19 or vaccination effectively becomes an occupational requirement for work at sea, then the shipowner would be liable for ensuring that a vaccine has been offered and at no cost to the seafarer.
It is anticipated in this regard that a number of governments will be providing free vaccinations for their citizens.
Availability of vaccines
Although in the longer-term supply is not expected to be an issue given the number of vaccines in development, at present stocks of COVID-19 vaccinations are limited and are not available for private sale.
Each State has its own priority list for rolling out the vaccine. For seafarers already on a tour of duty, there is no guarantee that a State other than their State of nationality/ residence will consider them for vaccination at all or for priority vaccination.
There have been reports that the AstraZeneca vaccine could be available for private purchase in India. While general availability remains restricted any secondary private market could carry increased risks of a particular vaccine batch having been illegally acquired or fake/unsafe.
This would make due diligence in vaccine sourcing even more important. It may also make requiring vaccination for seafarers more likely to be deemed discriminatory