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.