Mandatory workplace Covid-19 vaccination – the story so far

Mandatory workplace Covid-19 vaccination – the story so far

The debates around mandatory Covid-19 workplace vaccination policies are currently the dominant labour relations conundrum. Compulsory workplace vaccination policies – can you, or can’t you?

It’s a hot topic, and everybody has their own view and opinion on the efficacy and wisdom of vaccination, and the extent to which employers have a right to impose mandatory workplace Covid-19 policies. However, regardless of personal opinions, our courts will ultimately determine how employers are to approach workplace Covid-19 vaccination, in light of the 11 June 2021 Consolidated Directive on Occupational Health & Safety Measures in certain workplaces. Make no mistake, we won’t know for sure until we begin to see Constitutional Court judgments on this issue.

In the meantime, employers have decisions to make, which can’t be delayed until Constitutional Court judgments are forthcoming. So, where do we look for clues on the way forward. Aside from the Consolidated Directive on Occupational Health & Safety Measures in certain workplaces, it does no harm to observe how other democracies around the, with similar human rights law, are dealing with this thorny issue.

What we do know is that the CCMA is ‘red-lining’ vaccination related dismissals, which for now, are being adjudicated by selected Senior Commissioners. At the time of writing, our understanding is that there are approximately 13 current, live cases at the CCMA, although expect this number to rapidly increase.

On 1 September 2021, the New Zealand Employment Relations Authority (Christchurch) passed judgment in the case of GF v New Zealand Custom Service [2021] NZERA 382 3138682. In short, the employer had terminated the employee’s employment on grounds of his refusal to be vaccinated, after it had conducted a thorough health and safety assessment. The court held that the employer “had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker”.

The European Union’s equivalent to the SA Occupational Health & Safety Act is the Safety, Health & Welfare at Work Act (2005) and article 8(1) of the European Convention on Human rights which mirrors many of the human rights found in the Constitution of SA. Importantly, human rights are not absolute in either, meaning that they can be limited when it is reasonable and justifiable to do so.

A study of relevant European case show reveals that in Boffa & others v San Marino (European Court of Human Rights – 26536/95 15) it was acknowledged that that “the interference arising from the compulsory vaccination of the applicant’s children against hepatitis B was justified by one of the legitimate aims enlisted in article 8(2) of the European Convention, namely the need to protect the health of the public and the persons concerned”.

Finally, in Solomakhin v Ukraine (European Court of Human rights – 24429/03 2012) the court recognised the weight which must be attached to public health and the need to control infectious diseases (many say that Covid-19 is not merely infectious, but is in fact contagious). It went on to say that “In the court’s opinion the interference with the applicant’s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region”.

All cases of this nature will be fact-specific, and require evaluation on their own merits.

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