An overview on a Workplace Covid-19 Vaccination Policy for Employers

Introduction

South Africa, much like many other countries in the world, has been caught in controversies relating to vaccine mandates, where there are parties for and against the mandate. While there are parties urging employers in South Africa not to apply this policy in the workplace, others are considering the Occupational Health and Safety Act, and the obligation that both employees and employers must ensure a healthy and safe workplace.

Initial Dismissals for refusing the vaccine

Social and news platforms exploded recently following the dismissal of an employee who refused to be vaccinated, with the case taken to the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, ruling the dismissal as fair.

The decision behind this ruling was simple; according to the CCMA, the employee may be dismissed because the employee refused to partake in the process that would ensure a safe working environment.

This is the first ruling in connection with the issuance of workplace mandatory vaccine policies, something that the Commission for Gender Equality (CGE) has cautioned employers against, attributable that these businesses risk infringing the Constitutional rights of employees.

After the first ruling was made by the CCMA, another followed involving a Safety Practitioner who was given an ultimatum by their employer. The employee was barred from the workplace until proof of a Covid-19 vaccine could be provided. Alternatively, the employee would be subject to weekly Covid-19 testing, at their own cost.

The CCMA considered the procedure that the employer followed alongside the dispute of the employee claiming unfair suspension from duty. The employer had conducted several Occupational Health and Safety Risk Assessments between 2020 and 2021 to determine the best measures to ensure a healthy and safe working environment for all employees.

The risk assessment identified high risk employees and the best measures to safeguard employees and clients against Covid-19, involved these employees being fully vaccinated. In its quest for a finding, the CCMA considered several factors as well as legal principles, given the employer’s essential service and the frontline position that employees are in, especially considering the Disaster Management Act.

The CCMA’s final ruling was that the suspension of the involved employee was fair. Subsequently, it did not constitute an unfair labour practice and in addition, the CCMA also reiterated its support to employers in South Africa who are implementing the necessary processes to ensure the health and safety of employees and the overall public.

The impact of implementing a mandatory vaccination policy

The Commission raised concerns regarding recent studies conducted on the Covid-19 vaccine’s effect on menstrual cycle length. However, this is a slight effect that is temporary, and thus clinically insignificant.

The Commission warned businesses in South Africa against forcing their employees to be vaccinated and subjecting them to harsh consequences for not complying, especially where the termination of employment is concerned.

A concern of CGE is the number of employees who are employed in the retail sector, with many of these employees not in any position to negotiate with employers if they do not feel comfortable receiving the vaccine because of the side effects.

Once scientists have confirmed that there is a connection between the Covid-19 vaccines and the reproductive health of individuals, such as menstrual cycles, many of these individuals may not be willing to be vaccinated. This is something that must be considered by employers who are leaning towards applying the vaccine mandate.

Vaccine Legislation

Before Covid-19, vaccinations were a necessity at birth to prevent a wide range of life-threatening infectious diseases that could result in high mortality rates among infants and children. These vaccinations are not compulsory, but parents are still urged to ensure that their children receive them.

With the emergence and spread of Covid-19 and the rollout of vaccines against the disease, the important question is whether Covid vaccination policy and OHSA Mandatory Vaccination Policy should take effect.

There is currently no dedicated and mandatory vaccine in the workplace Covid-19 policy while others, such as yellow fever vaccination, is compulsory when travelling abroad.

Health and safety obligations of employers, considerations for the vaccine mandate

Employers are required by law to ensure that there is a safe and healthy work environment, as far as reasonably practicable. Under this law, employers may take steps against employees relating to maintaining a safe and healthy workplace for all employees.

However, while employers seek to enforce compulsory vaccine regimes, there are some considerations where challenges can be experienced in carrying out the mandate.

Constitutional Rights of Employees

Obliging workers to get vaccinated may impair one or more basic rights enshrined in the Constitution, especially Section 12, which relates to the security and freedom of the person, and Section 15, which refers to the freedom of individuals in terms of religion, belief, and opinion.

While these rights can be curtailed, restrictions must be fair and justified. There are also several considerations in terms of this, namely:

• The nature of the right
• The relevance and purpose of the limitation
• The type and degree of the restriction
• The link between the limitation and its aim
• Less restrictive means of reaching the same aim

It is possible that Section 11, the right to life, together with the right to a workplace free of harm to health and well-being (Section 24), may be utilized by employers to justify the workplace vaccine requirement.

Covid-19 immunization policy at work may be referred to the Constitutional Court because of the interplay between basic rights. This decision will need a delicate balancing act between the company's obligations to its workers and the rights of its employees.

In addition to the constitutional rights of employees, employers must consider specific aspects that relate to employment-related laws, including:

• The Labour Relations Act (66 of 1995), Section 187(1)(f) deals with automatic unjust dismissals according to the reason of discrimination which includes religion, conscience, belief, political opinion, cultural or arbitrary grounds.
• Sections 5 and 6 of the Employment Equity Act 55 of 1995 both provide comparable protection to workers against unfair discrimination by employers.

Practical Implementation and costs involved

There are several other considerations that employers should be aware of when requiring vaccinations of their workers, including but not limited to:

• Achieving an agreement with workers on changes to employment terms and conditions
• Vaccination data and histories supplied by workers are managed according to their privacy policies.
• Problems in managing reputation, especially when large corporations could face public criticism for failing in employing mandatory covid vaccine policies, especially healthcare corporations, and others.

Vaccination plans for Covid-19 in the workplace must consider a wide range of legal factors and their implications. Various conflicting rights and interests need a delicate balancing act. Subsequently, companies that are considering implementing a mandatory workplace vaccination policy should obtain legal counsel to determine if doing so would be lawful.

Workplace Covid-19 Vaccination Policy available for download at