The tense uncertainty as to whether employers will be entitled to impose mandatory Covid19 vaccine policies on employees is already a hot topic, and it’s going to become even more so in the coming months, as vaccines arrive in the country and the vaccine drive begins. The answer to this conundrum is, perhaps understandably, unclear. There are many factors which will go into ultimate legal direction on whether employers will be able to make vaccines compulsory for employees and job applicants.
One thing I for sure, many employers will be eager to have all their employees vaccinated for numerous justifiable reasons.
Few countries having laws which explicitly permit or prohibit employers from mandating vaccines, and South Africa is no different. A recent (29 January 2021: Vol. XI, Number 29) of the USA National Law Review noted that “employers cannot mandate vaccination in the European Union, nor can governments justify it from the point of view of personal freedom. In Chile, the possibility of employer-mandated vaccination is under discussion, and in Canada, employers could consider, for example, access restrictions to the workplace where employees refuse the vaccination”.
But what about the South African workplace? Let’s start with the case for making vaccination compulsory at work.
The point of departure is the Occupational Health & Safety Act. You don’t need to look much further than section 8 of this Act, General duties of employees to their employees, to find pretty much everything there is to know about exactly what steps employers must take to ensure a healthy and safe workplace. A simple reading of section 8 of the Act all but confirms that mandatory vaccination in workplaces should easily pass legal scrutiny.
For starters, the Act compels employers to not only ensure the safety of its employees, but in fact all persons on the employer’s premises. This would include, for example, sub-contractors, visitors and anyone else who enters the employer’s premises. What’s more, this obligation to ensure the safety of all employees and any other person in the workplace must be undertaken proactively by the employer, as confirmed in a Labour Appeal Court judgment in Pikitup (Soc) Ltd v SAMWU [LAC: 2014].
It’s not a stretch to assume that a mandatory Covid19 vaccine policy would be one such proactive measure in the face of the pandemic.
The Act defines ‘occupational hygiene’ as meaning the “anticipation, recognition, evaluation and control of conditions arising in or from the workplace, which may cause illness or adverse health effects to persons”. Covid19 quite plainly “may cause illness or adverse health effects to persons”. Section 8(2)(b) of the Act compels employers to “eliminate or mitigate any hazard or potential hazard to the safety or health of employees, with section 8(2)(g) adding that it’s not only employees who are the focus of a healthy and safe work environment, but indeed “every person … on the premises”. This would include sub-contractors, visitors and any other person who enters the employer’s workplace.
Employees too have statutory Occupational Health & Safety Act obligations in that, says section 14 of the Act (Employee Duties), employees must “take reasonable care of the health and safety of himself and others who may be effected by his acts or omissions”. Does refusal to be vaccinated not adversely affect the “health and safety of himself and others” in the workplace? Surely it does?
It’s hard to argue against the fact that a simple reading of the Occupational Health & Safety Act all but confirms that will have a legal right to require employees to be vaccinated. However, and importantly, these statutory employer and employee obligations to ensure a safe and healthy workplace must be weighed up against certain human rights contained in the Bill of Rights in the South African Constitution.
Key Constitutional rights in this debate are the right to human dignity, bodily integrity (control over one’s body), religious and cultural beliefs. Let’s not forget however that all rights are subject to section
Key in the debate as whether or not employers can require employees to have the Covid19 vaccine is whether, or not, section 36 of the Constitution, Limitation of Rights, will ultimately be judged to limit the Constitutional rights to human dignity, bodily integrity, religious and cultural beliefs, in favour of mandatory vaccination, on grounds that these rights can, in the circumstances, be justifiably and reasonable limited, in the interest of public health and fighting the pandemic.
Another key consideration is the fact that in unionised environments, an employer can enter into collective agreement which makes vaccination compulsory for the entire workforce.
Yet another aspect of potential mandatory vaccination policies is potential for an employer to be sued by way of a civil claim, for any medical adverse effects, on an employee.
Perhaps the best compromise, is to permit mandatory Covid19 workplace vaccine policies, with the potential for exceptions based on justifiable medical, cultural and religious grounds, or to legislate for mandatory vaccination of employees in workplaces at greater risk of infection, such as mines and other workplaces which are characterised by enclosed, poorly ventilated working environments.