Author: Michael Agius

The IMO and several industry stakeholders have been backing 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 front-liners and key workers for the past year or so.  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 Flag vessel react to a seafarer who refuses to receive their COVID-19 vaccine jab? The issue of forced vaccination is a complex discussion.

Applicable Maltese law

There is currently no definitive guidance on the subject of forced vaccinations. Understandably there is no local legislation which shipowners can rely upon to oblige 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 for employment or termination if a seafarer refuses without just cause to be vaccinated.

At the outset, it is important to note that the Maltese government has not mandated the COVID-19 vaccine as being compulsory for its residents or citizens. Moreover, up until earlier this year the Government publicly reiterated that it would not impose inoculation upon residents or citizens of Malta. Nevertheless a few months ago, in July 2021, the Maltese Prime Minister stated that employers should try to convince workers to get vaccinated.

Both the IMO and ILO have issued several circulars and information notes guiding ship owners in the right direction when it comes to key topics which have become synonymous with shipping and this global pandemic, such as repatriation of seafarers, the extension of crew contracts, quarantine and access to medical care, and eventual vaccination against COVID-19.

In relation to the latter topic, both Organisations promote and encourage shipowners to vaccinate their crew members. However, they fall short of explaining what an owner should do, or how one should react, in a scenario where a seafarer expressly refused or is unable to be vaccinated (for instance for medical reasons).

The 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 states in Regulation 4.1 (1) that “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.” This provision however 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; first in relation to seafarers who do not wish to take the vaccine, and second, with regards to crew members who have taken the vaccine.

When considering the latter category of seafarers, the ship owner as an employer has the obligation to safeguard these seafarers’ health and safety. It may, therefore, be argued that allowing an unvaccinated seafarer to mingle freely with the rest of their cohort as being potentially unsafe, since the repercussions may be harmful to those seafarers who have been vaccinated.

Conversely, it may be argued that the ship owner has the obligation to protect each seafarer on board. So, could one argue that the employer or ship owner would need to at least discuss the potential of vaccination with that seafarer, whilst 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 he has the 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 onboard the ship. Naturally, this assessment would vary depending on the type of vessel – the evaluation on board a passenger cruise liner will differ from that of a tanker barge.

One may argue 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, and not all seafarers can be put into the same basket. The question is raised therefore, what would a ship owner or employer have to do if the said assessment concludes that unvaccinated employees are considered to be a health and safety risk for all on board the ship?

Unfortunately, the law is silent in this regard also. It must be stated though that under Maltese law, similar in some ways to the English system, employers or in this case the shipowners, would owe a duty of care to the seafarers employed on board their vessels. This duty of care would go hand in hand with the Maltese 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 the vaccinated one also.

Due to the health and safety obligations, it is important that ship owners 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, ship owners may also choose to limit interaction of groups of employees with others, to stop or slow-down any potential spread of the virus.

Finally, one must remember that data protection and 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.

Conclusions

• Maltese law is silent on how a ship owner 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 applicable laws, not just Maltese law, but also the laws of the territories in/from which vessels need to travel.
• It is the ship owner 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 in order 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 same would create further obligations on the employer or ship owner.

©Fenech & Fenech Advocates 2021

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