11 October: Residential care facilities to operate vaccinated

by Linda Straker

• Residential care establishments or facilities shall operate vaccinated as of 11 October
• CMO may direct closure for 7 calendar days to facilitate compliance
• Exemption may be granted on religious grounds

11 October 2021 is the date set by the Government when all employees, residents, or patients at operating residential care establishments or facilities shall have had at least the first dose of a Covid-19 vaccine.

“From the 11th day of October 2021, no residential care establishment or facility, including an elderly nursing home, shall operate unless it operates with only employees, residents, and patients who have produced to the establishment, business, or office a Covid-19 vaccination card evidencing that the employee, resident or patient has received at least one dose of a Covid-19 vaccine,” says section 10 subsection 3 of the Emergency Powers (Covid-19) (NO. 5) Regulations, 2021.

Where the Chief Medical Officer (CMO) is satisfied that an establishment, business, or office that is subject to regulation 10 is in contravention of that regulation, in addition to any other penalty under these Regulations, the Chief Medical Officer may direct the closure of the establishment, business or office for 7 calendar days to facilitate compliance with that regulation.

Despite the mandate for staff to be vaccinated, the regulation provides for the CMO to exempt an employee if that person submits a written application that is accompanied by a certificate of a licenced medical practitioner certifying that vaccination against Covid-19 is not advisable for that employee on medical grounds.

“The Cabinet may exempt an employee… if, upon written application to the Chief Medical Officer stating his or her objections to vaccination on religious grounds, the Cabinet is satisfied that the employee should be exempted on religious grounds,” says the regulations which came into effect on 5 October 2021.

“For the purpose of determining an application [for exemption on religious grounds], the Cabinet may request additional information from the employee to facilitate due consideration of the application,” the regulation advises.

A recent confidential legal briefing prepared by 2 prominent Caribbean-born internationally respected jurists for OECS Heads of Governments advised that any law or policy for making Covid-19 mandatory must accommodate certain exceptions such as medical reasons and religious reasons for not taking the vaccine.

The position to the OECS governments is outlined in a 16-page confidential brief, titled “The Legal Dimensions of Mandatory/Compulsory Requirements for Covid-10 Vaccinations, August 2021.”

“Any policy or law, whether in relation to the private sector or the state, should include legitimate exemptions to the general requirement of vaccination to satisfy the reasonableness and proportionality thresholds,” says the document.

“The obvious categories for such exceptions are objection on grounds of religion and medically established health risks because of the vaccine. Objections on Religious Grounds Exemptions on religious grounds be protected. However, the criteria for such exceptions will be strict,” the legal minds advised.

“In the case of religious objection, in accordance with case law, this must be a recognised objection to medical interventions/treatment based on the established religious belief of the religion or religious sect well-known objections to medical treatment. An employee could not present as an objection on religious ground an objection to the vaccine in a laissez-faire manner,” says the briefing.