Many employers have placed their hopes of a return to the pre Covid-19 workplace on the development of a Covid 19 vaccine. South Africa is in the process of acquiring and rolling out vaccines, however, it seems that although people are encouraged to be immunized, no one will, at this stage, be legally required to take the vaccine. Furthermore, unlike medical testing in the workplace, which is regulated in terms of section 7 of the Employment Equity Act (“EEA”), at present, there is no employment and labour legislation regulating medical treatment in the workplace, which includes immunization in the workplace. It is against this backdrop that many employers will, justifiably so, be looking to rely on its obligations as contained in the Occupational Health and Safety Act (‘OHSA”), to implement a mandatory immunization policy for its employees and job applicants.
The OHSA places a duty on employers to amongst others, provide and maintain, as far as is reasonably possible, a working environment that is safe and without risk to the health of its employees. Employers therefore need to take appropriate steps in their workplaces to comply with these obligations and it is arguable that by implementing a mandatory workplace immunization policy, employers will ensure that the risk of contracting and spreading covid -19 in the workplace is minimised and possibly illuminated. However, prior to implementing a mandatory immunization policy in the workplace or compelling employees to be vaccinated, employers should consider the following:
· Section 12(b) of the Constitution states that everyone has the right to bodily and physiological integrity, which includes the right to security in and control over one’s body. This section provides that a person has a right to make decisions about their own body in an autonomous and independent manner without any undue external interference and prevents any unwanted disturbances of bodily integrity, as would arise if an employee/job applicant is compelled to be immunised.
· The Constitution protects a person’s right to religion and belief, including the right to practice one’s religion. Certain religions may prohibit immunisation. Furthermore, certain vaccines may contain ingredients that are prohibited in certain religions.
· Vaccinated employees may raise that their constitutional right to life is being compromised by working with employees who object / refuse to being vaccinated (especially since contracting covid -19 can cause death).
· Employees / job applicants are protected from being unfairly discriminated against in terms of the EEA and in particular on the grounds listed in Section 6 of the EEA. Therefore, if an employer does not employ a job applicant or refuses an employee entry into the workplace, for instance, based on their objection to be vaccinated on religious or cultural believes, the employee / job applicant may challenge that decision as an unfair discrimination.
· Should an employee be dismissed for refusing to be vaccinated on any unfair discriminatory ground listed in the EEA, an employee may challenge the fairness of his or her dismissal as an automatically unfair dismissal.
· Unilaterally implementing a mandatory immunisation policy in the workplace (without consulting , ideally negotiating, the employees and/or their trade unions to obtain consent/agreement) could result in employees alleging that their terms and conditions of employment were unilaterally amended. This could result in endless unfair labour practice disputes at the CCMA and if upheld could result in the policy being unenforceable.
· Certain employees may raise valid and justifiable health concerns associated with the vaccine. These could range from both short and long-term side effects to the potential complications due to existing medical conditions.
· Employers who compel employee’s to be vaccinated may run the risk of potential damages claims in circumstances where employees/job applicants adversely react to the vaccine.
An employer is encouraged to consider all objections seriously, however, the justifiability of each objection will be determined on a case to case basis after having regard to the nature and reasons of the objection, the nature of the employers industry, workplace, workforce and the degree of risk associated with the failure to be vaccinated, including the employees specific job function and the possibility and feasibility of implementing other reasonable protective measures, short of the vaccine. Furthermore, none of the above-mentioned rights are absolute in nature, with each of them possibly being limited, if the requirements of lawful limitation is met, together with the other considerations require such a limitation. What is clear, is that a one size fits all approach may not be implementable and our courts will be called upon to make decisions on a case specific basis, because what may be lawful in an industry where risk exposure is very high may not be lawful in other industries.
In light of the above, prior to implementing a mandatory immunisation policy, it is advisable for employers to identify the risk of exposure to covid – 19 at the workplace and also to identify the possibility and feasibility of implementing other reasonable protective and preventative measures, short of the vaccine to limit and eliminate the risks, if any. Thereafter, it is advisable for an employer to also embark on an employee vaccination awareness and education programme. The purpose of the awareness and education programme is to encourage employees to get vaccinated and at the same time to address any employee concerns, objections, and myths. Depending on the nature of the concerns, it may be beneficial to also utilise the services of a health care professional and/or religious leaders from different faiths. By adopting this approach, the employer will mitigate the risks discussed above and be best placed to receive consent and indemnity from its employees and if not, it will assist in determining the feasibility, risk exposure and the form of a workplace immunisation policy, if necessary.
By: Thandeka Mhlongo and Aslam Patel, Associate Attorneys at Adams and Adams