Mandatory vaccination policies in the workplace. Are they lawful and enforceable?

2.18.2022
BackCovid-19

As the world slowly crawls back to some semblance of normality and many countries consider lifting their travel bans, one topic of debate is ongoing, both in South Africa and abroad. Can and should companies implement mandatory vaccination policies on their employees?

It is trite that Covid-19 vaccinations assist in preventing many of the severe health complications one may otherwise be subject to. The vaccines have drastically limited the onset of serious cases where hospitalisation is often necessary, relieving the immense pressure on the health care system.

Internationally, many governments have pushed to enact mandatory vaccinations for day-to-day life as well as in the workplace context.  Last year, the South African Department of Employment and Labour issued a directive stating that employers may consider implementing vaccination policies after following a risk analysis and identifying which staff should be vaccinated. In South Africa it is clear that the intention is not that companies should simply implement blanket cover policies, but should rather identify whether a legitimate need exists for staff to be vaccinated, determined by their specific roles, duties and interaction with customers and the public at large.

However, many South African employers are now simply informing staff that they must be either be vaccinated or ‘hit the road’, opening themselves up to the risk of unfair dismissal cases being referred to the CCMA, relevant Bargaining Councils and Labour Court. Even employers, who believe that they are applying the correct procedure in selecting particular employees to be vaccinated, may find that their reasoning and procedures do not pass muster at the CCMA, Councils and Courts.

South Africa’s labour laws are incredibly advanced and protective of employees’ rights and many employers are likely to pay out large awards for unfair dismissals, until such time that we have some guidance from the Courts in dealing with employees who are unwilling to be vaccinated.  These are unprecedented times and employers should be cautious to force vaccination policies, unless they have consulted with an employment law specialist.

Retrenching staff who are unwilling to be vaccinated will certainly be deemed unfair if the company could have reasonably accommodated them in other ways, such as allowing them to work virtually from home where this alternative to dismissal is possible. Employers must legitimately investigate all alternatives to dismissal, as a retrenchment based on operational requirements is always a last resort.

Generally, people who can show legitimate medically validated health concerns over taking the vaccination should be exempt, as well as employees who have legitimate religious reasons for not undergoing vaccination. This is not to say that it is impossible to retrench such individuals, but such dismissals may be tricky and must be both procedurally and substantively fair. In addition, the Constitution of South Africa under the Bill of Rights Section 12(2) states that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body. This is a further argument which will no doubt be raised by many employees and it will be interesting to see how the Courts handle employees who simply do not want the vaccination for non-religious and non-medical reasons.

A further possible argument is that vaccinated individuals are already protected and are unlikely to get severely ill should they contract Covid-19, thus invalidating the claim that it is imperative that all staff should be vaccinated.  Vaccinated individuals could still carry and pass on the virus, and normal hygiene and Covid-19 prevention policies short of vaccination may very well in the Court’s opinion be enough in particular workplaces, thus rendering dismissals unfair. For almost two years, companies have operated with the use of masks and sanitizers; the question is whether it can truly be said that employees cannot carry on working unless they are vaccinated? Ultimately such matters will have to be determined on a case-by-case basis.

Trade Union Solidarity is currently taking the University of the Free State to court as they recently announced that they would be implementing a mandatory vaccination policy for both students and their employees. Solidarity is also taking private entities to Court, such as SEESA (the Small Enterprise Employers of South Africa), who themselves assist their clients with labour law matters such as the enforcement of mandatory vaccinations. Although every case is unique, the hope is that these cases will shed some light on the legality and enforceability of mandatory vaccination policies.

It is an uncertain time and employers and employees alike eagerly await a Court ruling to set precedent and to assist them in determining how parties may deal with mandatory vaccination policies in the future.

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