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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The employer Covid-19 vaccination conundrum

The employer Covid-19 vaccination conundrum

The much-anticipated Department of Employment and Labour ‘Direction’ on Covid19 vaccination was Gazetted on 11 June 2021. Mandatory vaccination is permissible; or is it?

Employers across the country are grappling with the decision of whether to make Covid19 vaccination mandatory, ensuring compliance with the 11 June 2021 Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces Gazette.  Annexure C of this Gazette is entirely devoted to mandatory Covid19 vaccination (“Guidelines if an Employer Makes Vaccination Mandatory”).  Helpful as it is, it does not address the question of dismissal in circumstances where an employee persists in their refusal to be vaccinated, if the employer has adopted a mandatory vaccination policy.

Getting the social partners to reach agreement on the question of workplace vaccination considerations can’t have been easy.  In fairness, it is a complex, multifaceted challenge.  On the one hand, the Occupational Health and Safety Act compels employers to promote and ensure workplace safety, health and hygiene, which suggests that workplace Covid19 vaccination should routinely be mandatory.  Yet, on the other hand, our Constitution provides for key human rights such as the right to equality, dignity, bodily and psychological integrity, freedom of religion, belief and opinion, and fair labour practices; all of which lay the groundwork for the contesting of mandatory workplace Covid19 policies.

So, there we have it.  Employers may establish mandatory vaccination policies, or is that may not?  Hence the current almost paralysis in employer ranks on the workplace vaccination policies being pondered throughout commerce and industry.

At face value, some industry sectors will have a stronger argument and justification for establishing blanket mandatory workplace vaccination policies than others.  For example, most health facilities, in all likelihood, will be able to justify a mandatory vaccination policy given the operational difficulty in applying strict social distancing protocols.  The mining sector too should be able to justify a mandatory vaccination policy given the enclosed working environment in mines, other than open cast mines.  It is even quite arguable that in the hospitality sector, such as kitchens and housekeeping, mandatory Covid19 vaccination policies should be able to withstand scrutiny.

However, our observations over a wide cross-section of other industry sectors, is that employers would by and large prefer mandatory vaccination policies, but are reluctant to do so for fear of being one of the first test cases on the question of mandatory vaccination policies.  Because, make no mistake, there will be a test case, or more likely, a slew of test cases, and no employer is particularly enthusiastic about being a party in such a case.

When all is said, and done, there are three options when it comes to concluding a workplace vaccination policy (1) vaccination is non-mandatory, (2) vaccination is mandatory, or (3) vaccination is mandatory for some employees, but not others.

Section 4 of Annexure C of the Gazette highlights that when contemplating a mandatory vaccination policy “a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business”.

An employer’s risk assessment in accordance with sections 8 and 9 of the Occupational Health and Safety Act will largely influence employer decisions regarding mandatory, or non-mandatory workplace Covid19 vaccination policies.  If an employer risk assessment concludes that the workplace is an inherently hazardous environment which is incapable of limiting the likelihood of workplace infection, a mandatory Covid19 mandatory workplace policy will be more justifiable than a workplace which can take steps to minimise the likelihood of infection.  This, of course, applies to both employees and any other third parties who may access the workplace.

On a practical level, the workplace risk assessment would focus on the ability to maintain social distancing, ventilation, sanitising protocols, the staggering of working hours and meal breaks, hygiene protocols and the like.

It is quite possible that an employer makes Covid19 vaccination mandatory for some employees, but not for others.  For example, given the ergonomics of many workplaces, there may be a likelihood that infection will more likely impact on the health of employees, or others, in one area of a workplace, more than another.

Sooner or later, there will be dismissals for refusal to be vaccinated in workplaces with mandatory Covid19 vaccination policies; it’s inevitable.  It’s clear from annexure C of the Gazette that any pre-dismissal procedure will need to include an employer evaluation of the employee’s grounds for refusal, and an assessment of whether it was possible to accommodate the employee in a position that does not require the employee to be vaccinated.  If not, dismissal on grounds of refusal to be vaccinated in a workplace with a mandatory workplace Covid 19 policy will likely amount to dismissal on grounds of either misconduct (refusal to obey a lawful and reasonable instruction), or potentially on grounds of incapacity, in that without being vaccinated, the employee does not have the capacity to meet their employment obligations in not agreeing to be vaccinated.

The employer Covid-19 vaccination conundrum

Can employers require employees to be vaccinated?

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.

Mandatory workplace Covid-19 vaccination – the story so far

Covid-19 and the Workplace: The Story So Far

It’s hard to find the words to adequately describe the impact that Covid-19 has had on our lives, as well as its likely impact for the foreseeable future. Workplaces are undergoing their own revolution, as new, novel and unprecedented challenges build.

The well-intended UIF TERS benefits have, by and large, been successful, notwithstanding a glut of administrative glitches flowing from an overburdened Department of Employment and Labour.  Workplace health and safety has been catapulted, front and centre, into the headlights of employers, who face a myriad of new challenges.  Workplace modelling is also now centre stage.  Social distancing works in some workplaces, but less so in others.

Our national client base is diverse, and we have observed how Covid-19 has impacted all sectors, with some experiencing brutal consequences.

Our hospitality industry clients have, perhaps, been hardest hit.  Hospitality was the first sector to be badly affected, and will be the last and slowest to recover, especially that segment of the sector with large foreign, international guest exposure.  As things stands, many hotels have been closed for almost two months, and may not reopen-open until October 2020.  Some European based airlines only expect to reach 80% of pre-Covid capacity by 2023.

Most readers will have had first-hand experience of the devastating impact of Covid-19 on jobs.  We have two specific observations on this.  Firstly, many of our clients are retrenching due to the severe economic impact Covid-19 is having on the viability of their businesses.  A second observation, which few anticipated, is that some employers less prejudiced by Covid-19, are none the less retrenching, as they have come to realise that, as staff are gradually returning to work, they are in fact overstaffed, and can get by without all employees returning.

Most employers elect to offer staff voluntary retrenchment packages, before implementing section 189, or 189A, of the Labour Relations Act. Perhaps, unsurprisingly, our clients who have done so have had a higher number of voluntary retrenchment applications, than would otherwise have been expected.  This can largely be attributed to two things.  Firstly, as time goes by, households are finding it increasingly difficult to manage their cash-flow, as many are on reduced income.  For this reason, they are choosing to ‘cash-in’ on the enhanced severance payments associated with voluntary retrenchments, to stabilise their household cash-flow.  Secondly, retrenchment volunteers often apply as they fear subsequent unilateral retrenchment process, with a less attractive severance pay formula.

Retrenchments processes can be initiated, as long as there are adequate measures taken to ensure that the required consultation process can take place.

The CCMA opened its offices yesterday, since closing in late March 2020. Time will tell how they adapt. In fairness, the CCMA has an unenviable task. The significant case backlog, occasioned by the national shutdown, will not be erased quickly.

We represent clients at the CCMA throughout the country.  The smaller CCMA offices such as Sabi (Mpumalanga) can probably adapt more quickly than the ever-busy Johannesburg office.

With the move to lockdown level 3 on 1 June 2020, most sectors will reopen.  We anticipate numerous challenges. Employers are advised, in addition to ensuring compliance with sanitisation and social distancing measures, to have each returning employee complete, and sign, a return to work Covid-19 preparedeness induction documentation, to confirm that the induction has been completed, and that the employee fully understands their responsibilities in the newly configured workplace.

Musings of a labour relations consultant during the Covid-19 disaster

The Covid-19 developments have taken our breath away.

My personal Covid-19 period memory bank takes me back to a flight back to South Africa from Frankfurt in mid-January 2020, when most of us were pretty oblivious to the impending drama that was about to unfold.  I’d missed my flight and had to spend twenty-four hours at Frankfurt airport before catching a flight home the following evening.  Up to this day, I ponder the level of risk I was unknowingly exposed to at the airport, for a relatively prolonged period of time.

On 15 March 2020, the President declared Covid-19 a national disaster in terms of the National Disaster Act (57 of 2002).  Later that day, a Sunday, a client of ours sent me a WhatsApp message, asking us for advice on how to deal with a national “mandatory shutdown” of the retail industry.  This is a national retailer, operating across the globe.  To be honest, this surprised me – “mandatory shutdown”?  This was reflected in my reply to him – “No indication of retail closures, if so, will be a combination of annual leave and negotiated unpaid closures”.  At the time, the prospect of a national lockdown was, apparently, highly improbable.

Within a mere eight days of receiving that client WhatsApp message, the President announced a twenty-one-day national lockdown, commencing at midnight on Thursday, 26 March 2020, a bold and decisive measure to limit the spread of Covid-19.

On 26 March 2020, the Minister of Employment Gazetted the Directive relating to the establishment of the Covid-19 Temporary Employee/Employer Relief Scheme (“TERS”).  By now, ‘TERS’ has become a colloquialism which was largely unheard of, a mere two weeks ago.  Yet it is set to be the difference between food on the table and starvation, for thousands of South Africans over the coming weeks.

Quite simply, TERS is a scheme to fund income short-falls during the national lockdown, to be paid from the National Disaster Fund.  Time will tell how efficient this well-intended scheme will work.  Predictably, our firm has been inundated with enquiries and request for assistance in the TERS application process from employers across the country.

Since then, to date, South Africa’s Covid-19 infection and death rates, whilst alarming in their own right, have not mirrored the awful infection and death rates experienced elsewhere.  We have also experienced the real economy in apparent free-fall, and this has bludgeoned jobs.  In the USA, for example, approximately 10 million applications for unemployment benefits were received in the last two weeks of March 2020 alone.

South Africa, and the rest of the world, has followed suit, with some predicting that our already outrageously high unemployment rate will climb at least another ten percent, or higher, within weeks.

To be honest, as a labour relations consultancy firm, at any one time, we are typically partnering clients in the implementation of retrenchments.  This should come as no surprise if one stops and thinks about the parlous state of our economy in recent years.

The impact of Covid-19 has, however, pretty much overnight, impacted job security on a massive scale, not experience in our lifetime, or perhaps at any time in history.  Many employers are clamouring to retrench staff any which way possible.  Some industries have clearly been more affected than others.

The hospitality industry has fallen off a cliff.  Hotels, bars and restaurants have closed. Many won’t reopen.  Most of our hotel clients have closed down for three months, irrespective of whether, or not, the lockdown period lasts that long.  They realise that hotel bookings are not going to be normalised for many months to come, regardless of how long the lockdown continues, or how long it takes for Covid-19 infections and deaths to be brought under control. Most anticipate a long, and slow, resumption in hotel and guest confidence levels, crucial to enable the hospitality industry to get out of the red.

Employers are in a conundrum in deciding how to navigate the unchartered waters of needing to reduce all costs, especially payroll, when in lockdown mode.  It will take a very brave employer indeed, to attempt to commence a retrenchment procedure, as provided for in the Labour Relations Act; the national lockdown prevents an employer from complying with the letter and spirit of consultation required in the Act.

That is why many employers have decided to offer staff voluntary retrenchment during the lockdown.  In most other circumstances, most employees would not consider the prospect of voluntary retrenchment enticing, and yet in the current circumstances, many employees are indeed applying for voluntary retrenchment to access funds to see them through the next few months. Employees applying for voluntary retrenchment understand that they would otherwise qualify for UIF TERS benefits, but only up to a maximum of 60% of their salary, if they are lower paid workers.

The world of work is going to be a wild ride for quite some time to come.