Applicable Maltese law
The International Maritime Organisation (IMO) and several industry stakeholders have been backing the initiative for seafarers to receive the covid-19 vaccination since mid-2020 when rumours of clinical trials for a potential vaccine were close to completion. Indeed, the IMO have been advocating for seafarers to be considered as frontliners and key workers for approximately the past year. The acceptance of this status by several flag states, and the World Health Organization naming seafarers as one of the groups to be prioritised for covid-19 vaccination in instances of limited supplies, may be considered by many in the maritime sector as victories in the fight towards reaching some semblance of normality, akin to that which existed pre-covid-19.
With vaccines now becoming more accessible, and with an increase in the number of persons eligible to receive vaccinations worldwide, the inoculation of crew has become a topical subject. How should, or better, how can a ship owner or employer operating a Malta-flagged vessel react to a seafarer who refuses to receive their covid-19 vaccine? The issue of forced vaccination is a complex discussion.
There is currently no definitive guidance on forced vaccinations. Understandably, there is no local legislation which shipowners can rely upon to obligate a seafarer to be vaccinated against covid-19. Likewise, there is nothing in the law on whether said vaccination or lack thereof can be a condition of employment, or termination if a seafarer refuses, without just cause, to be vaccinated.
At the outset, it is important to note that the government has not mandated the covid-19 vaccine for its residents or citizens. Moreover, until Spring 2021, the government had publicly reiterated that it would not impose inoculation upon Maltese residents or citizens. Nevertheless, in July 2021, the prime minister stated that employers should try to convince workers to get vaccinated.
Both the IMO and International Labour Organisation have issued several circulars and information notes guiding shipowners in the right direction when it comes to key topics which have become synonymous with shipping and the pandemic, such as:
- repatriation of seafarers;
- the extension of crew contracts;
- access to medical care; and
- eventual, vaccination against covid-19.
In relation to vaccination, both organisations promote and encourage shipowners to vaccinate their crew members. However, they fall short of explaining what an owner should do, or how an affected party should react, in a scenario where a seafarer expressly refuses or is unable to be vaccinated (eg, for medical reasons).
The Maritime Labour Convention (MLC) was transposed into Maltese municipal law through the Merchant Shipping (Maritime Labour Convention) Rules, Subsidiary Legislation 234.51 (the Rules) in 2013. Title 4 of the MLC deals specifically with the health protection and medical care of seafarers on board ships and on shore, and it states in regulation 4.1(1) the following:
Each Member shall ensure that all seafarers on ships that fly its flag are covered by adequate measures for the protection of their health and that they have access to prompt and adequate medical care whilst working on board.
However, this provision does not explicitly include obligations relating to vaccinations or immunisations.
In the context of the present discussion, regulation 4.1(1) needs to be analysed in terms of two opposing groups: in relation to seafarers who do not wish to take the vaccine and crew members who have taken the vaccine.
When considering the latter category of seafarers, as an employer, the shipowner is obligated to safeguard their crew's health and safety. Therefore, it may be argued that allowing an unvaccinated seafarer to mingle freely with the rest of their cohort is potentially unsafe, since the repercussions may be harmful to those seafarers who have been vaccinated.
Conversely, it may be argued that the shipowner has the obligation to protect each seafarer on board. So, could one argue that the employer or shipowner would need to at least discuss the potential of vaccination with that seafarer, while trying to understand why the seafarer has chosen not to get vaccinated (if the opportunity has indeed arisen)? It would appear that a shipowner does not have a right to impose inoculation; however, the spirit of the law would suggest that they have an obligation to encourage and promote said vaccination.
Article 114 of the Rules imposes an obligation upon the shipowner to carry out an assessment of all the occupational health and safety hazards which may be present on board the ship. Naturally, this assessment varies depending on the type of vessel – the evaluation on board a passenger cruise liner will differ from that of a tanker barge.
It can be argued that unvaccinated crew members could create, increase or form an integral part of an onboard hazard. Each situation would need to be reviewed on a case-by-case basis as not all seafarers can be put into the same category. Therefore, there is the question of what a shipowner or employer would have to do if said assessment concluded that unvaccinated employees are considered to be a health and safety risk for all on board the ship.
The law is silent in this regard. Under Maltese law, employers or in this case the shipowners, owe a duty of care to the seafarers employed on board their vessels. This duty of care goes hand in hand with the prime minister's sentiment as said duty would allow employers to encourage seafarers to receive their vaccination. This, the employing shipowner could argue, would not only protect the unvaccinated employee, but also the vaccinated crew.
Due to the health and safety obligations, it is important that shipowners and crew ensure that proper covid-19 protocols and measures are implemented and enforced upon vessels. Where necessary, and up to the extent that it would be possible on board a vessel, shipowners may also choose to limit the interaction of groups of employees with others, to stop or slow down any potential spread of the virus.
It is important to remember that data protection and General Data Protection Regulation (GDPR) considerations must be examined by the shipowner. This is because data concerning the health of an individual – in this scenario, the seafarer – would be considered to be a special category of data. This type of data would be subject to additional protection under the GDPR.
Maltese law is silent on how a shipowner can deal with seafarers who refuse to get vaccinated against covid-19 or any other disease. It is important for shipowners to make their individual assessment of the applicable laws, not just Maltese law, but also the laws of the territories in or from which vessels must travel.
It is the shipowner or employer's obligation to safeguard the health and safety of all seafarers on board their vessels, both under the MLC and as part of their duty of care towards their seafarers.
It will be interesting to see how the industry will evolve in the coming months when more and more people will have access to the covid-19 vaccine, as employers may try to insert new "vaccine friendly" clauses to regulate their vessel's crew contingent. That being said, should such a clause be challenged before the Maltese courts, especially if not drafted correctly, there is no clear-cut manner in which the courts would interpret its validity or enforceability.
The processing of information related to seafarers being vaccinated or otherwise would be considered as health data under the GDPR. Keeping logs of said data and the processing of the same would create further obligations on the employer or shipowner.
For further information on this topic please contact Michael Paul Agius at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email ([email protected]). The Fenech & Fenech website can be accessed at www.fenechlaw.com.