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Employers to request testing of their employees

The Ministry of VSA and the Ministry of TEATT recently published additional COVID-19 measures by ministerial regulation. These additional measures, allows employers to request testing of their employees, whether they are vaccinated or not.

Presently, the number of active COVID-19 infections on Sint Maarten is alarmingly high and the SMMC has reached its maximum capacity. In view of the highly contagious Delta variant, a drastic decrease in cases is not yet foreseeable. The situation on Sint Maarten is so alarming that immediate interventions with additional measures is necessary.

The Government is actively working to stabilize the rapid number of infections, in order to protect public health and to avoid a second 'lock-down' being declared for Sint Maarten. In an attempt to curb the rise in cases, the Government announced a curtailment of the nightlife hours on August 9th, 2021.

On the same date, the Government extended the ban on large gatherings. The World Health Organization, the European Center for Disease Prevention and Control, and the US Center for Disease Control and Prevention recognize that timely and accurate PCR or Antigen testing, are essential tools for preventing and controlling the spread of COVID-19.

When implementing testing policies, different strategies can be applied. For example, testing of persons who have been in contact with someone who is suspected of having COVID-19 or confirmed positive for COVID-19, or persons who are showing symptoms related to COVID-19. This testing strategy will allow persons to detect infections or identify clusters sooner, and further prevent the spread of the virus within their institution/establishment.

Testing can also be used as a preventive measure; by testing people who show no symptoms or do not know that they have been in contact with someone with COVID-19. This form of testing is also known as screening”. The objective of carrying out screening tests is to allow asymptomatic persons to undergo testing, even if they have no knowledge of exposure to COVID-19. Screening helps to identify unknown cases in order for measures to be taken early, to prevent further spread of the virus.

It is now common practice to take a test as a screening measure for travel purposes. Travelers must submit a negative COVID-19 test before their trip.

Given the nature and scale of the ongoing pandemic and the serious threat it poses to public health, the ongoing disruptions in the economy and the associated negative effects on the socio-economic stability of the country, the Government has decided that screening on Sint Maarten should be used more widely as a preventive measure.

In accordance with the jurisprudence, the employer is legally obligated to protect the individual interests of its employees by assuring a safe and healthy working environment. This implies that the employer should do whatever he or she can and what is within its powers during the pandemic, to avoid employees becoming infected in the workplace. A recent court verdict concluded that although specific COVID-19 measures can be a violation of the right to inviolability of the body, the judge ruled that the interest of protecting employees and customers from COVID-19 overrides the fundamental law.

Therefore, article 7 of the ministerial regulation offers the possibility for employers to request periodic testing of employees as a preventive screening measure. Employers are able to make periodic testing a part of their safety plan, as stipulated in article 3 of the ministerial regulation. After all, the employer has the legal obligation to protect its employees and third parties in the workplace against COVID-19 contamination. However, note must be taken of the costs associated with periodic testing, as these are to be borne by the employer. All other hygiene measures remain unaffected.
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