Sint Maarten: Employers can request screening of their employees

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The ASV ministry and the TEATT ministry have just published additional COVID-19 measures by ministerial decree. These additional measures allow employers to request screening tests from their employees, whether or not they are vaccinated.

Currently, the number of active COVID-19 infections in Sint Maarten is alarming and the SMMC has reached its maximum capacity. Given the highly contagious Delta variant, a drastic decrease in cases is not yet foreseeable. The situation in Sint Maarten is so alarming that it is necessary to intervene immediately by taking additional measures.

The government is actively working to stabilize the rapid number of infections, in order to protect public health and prevent a second “lockdown” from being declared for Sint Maarten. In an attempt to stem the increase in cases, the government announced a reduction in nightlife hours on August 9, 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 American Center for Disease Control and Prevention recognize that rapid and accurate PCR or antigen testing are essential tools for preventing and control the spread of COVID-19.

When implementing screening policies, different strategies can be applied. For example, screening people who have been in contact with someone suspected of having COVID-19 or confirmed positive for COVID-19, or people who have symptoms related to COVID-19. This screening strategy will allow people to detect infections or identify clusters of cases more quickly, and prevent the spread of the virus in their facility.

Testing can also be used as a preventative measure, testing people who have no symptoms or are unaware they have been in contact with someone with COVID-19. This form of testing is also known as "screening". The goal of screening tests is to allow asymptomatic people to get tested, even if they are unaware of exposure to COVID-19. Screening helps identify unknown cases so that action can be taken at an early stage to prevent the spread of the virus.

It is now common to take a test as a screening measure for travel. Travelers must present a negative COVID-19 test before their trip.
Considering the nature and extent of the current pandemic and the serious threat it poses to public health, the current disruptions in the economy and the associated negative effects on the socio-economic stability of the country, the government decided that screening in Saint-Martin should be used more widely as a preventive measure.

According to case law, the employer is legally bound to protect the individual interests of its employees by providing them with a safe and healthy working environment. This implies that the employer must do all he can and what is in his power during the pandemic, to prevent employees from being infected in the workplace. A recent court verdict concluded that while specific measures relating to COVID-19 may violate the right to inviolability of the body, the judge held that the interest of protecting employees and customers from COVID- 19 prevails over the Basic Law.

Therefore, section 7 of the ministerial regulation provides the possibility for employers to request periodic tests from employees as a preventive screening measure. Employers can integrate periodic tests into their safety plan, as stipulated in article 3 of the ministerial regulations. Indeed, the employer has a legal obligation to protect its employees and third parties in the workplace against contamination by COVID-19. However, the costs associated with periodic tests must be taken into account, as they are the responsibility of the employer. All other hygiene measures remain unchanged.

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