Of the 174 intakes received by the Human Rights Commission last year, approximately 45 related to the Covid-19 pandemic, including inquiries about the Government’s testing policies, employment, mask policies and more.
The Human Rights Commission annual report [PDF] said, “In 2021, of the one hundred and seventy-four [174] intakes received, approximately forty-five [45] related to the Covid-19 global pandemic. While the intakes were filed by different members of the public, they often covered similar areas of concern. Examples of the intakes received [both complaints and queries], were as follows:
- Members of the public enquiring into the legality of the Bermuda Government’s policy with respect to children being tested to participate in sports.
- Members of the public who were expatriate workers and reported being terminated throughout the pandemic, sought assistance relating to employers failing to cover costs associated with their repatriation and payment related issues.
- Members of the public enquired into the Bermuda Government’s testing policies.
- Members of the public reported concerns with regards to losing their employment for failing to be vaccinated.
- Members of the public highlighted their concerns regarding the Bermuda Government’s position on laws, policies, and mandates, which included mandatory face coverings, vaccination requirements and a general concern of differential treatment between individuals who are vaccinated and those who are not.
- Members of the public sought assistance with understanding the Bermuda Government’s regulations and mandates relating to vaccinations and mask wearing and whether it violated their individual human rights.
- Various employers sought assistance with managing their employees return to work after testing positive, drafting Covid-19 policies, face coverings, appropriate exemptions, and accommodations.
The report added, “A global challenge throughout the pandemic has been balancing and upholding individual rights while trying to collectively protect the public. Throughout the screening process of Covid-related intakes, the Commission reiterated that with any mandatory practice or policy applied to the public, the potential for discriminatory impacts exists and must be carefully assessed to ensure that violations do not occur.
“There is a risk of unlawful discrimination taking place where practices and policies fail to account for individual circumstances and characteristics, as this failure may result in a person or groups of people being unfairly disadvantaged, excluded and further marginalised.
“The Commission continues to encourage those developing and implementing policies and procedures to adopt a human rights-based approach when doing so, specifically those built around the ever-changing landscape of the global pandemic. An example of this need may include factoring in accommodations for those individuals that may be unable to receive a vaccination due to a disability. Another example of the need for exemptions and accommodation can be found with those who face the potential for exclusion as a result of being unable to wear a face covering due to a disability.
“The Commission’s position regarding the decision as to whether an individual chooses to receive a COVID-19 vaccine is that it is a voluntary decision. During 2021, an individual filed a complaint with the Commission alleging that they experienced discriminatory behaviour when they were terminated from their employment for not being vaccinated.
“The Human Rights Act, 1981 was discussed and specific probing went into whether the decision to not receive the Covid-19 vaccination was connected to a protected ground. The individual, being satisfied that their decision was not connected to a protected ground listed within section 2[2] of the Act, withdrew their complaint.
“Also, during 2021, multiple complainants alleged that employers discriminated against them by insisting that they undergo more frequent COVID-19 testing due to their unvaccinated status, thus applying differential treatment between individuals who were vaccinated and those who were not. Those individuals did not identify a protected ground under the Act but believed that the differential treatment was against their “human rights” or their “personal beliefs” generally speaking.
“Personal preferences and singular beliefs may not be protected under the Act. Where an individual who has elected not to be vaccinated, adhere to COVID-19 testing policies, or to protective measures put in place by the Government, employers, etc., based on a personal preference, such a decision may not be afforded protection under the Act.
“In the circumstances, such individuals may not have the right to modifications to the circumstances of their employment or within the area of goods, facilities, and services. In such instances, the Commission would request that the individual provide a clear description of the specific religion[s] or belief[s] or political opinion[s] that were held by them and offer guidelines for criteria to receive protection under the Act.”
