The COVID-19 pandemic has been devastating for our people and businesses alike. With the nationwide vaccination programme underway, our lives are en route to some degree of normality. At this juncture, South African employers face the complex question of whether they can implement mandatory vaccine policies. This article encourages business owners to exercise diligence and caution when considering mandatory vaccination policies, and to take advice on what is best for their workplace.
There is an absence of laws dealing expressly with vaccination policies in the workplace and if they may be made mandatory. The pathway to mandatory vaccination policies is provided for in the Occupational Health and Safety Act 85 of 1993(“the OHSA”). The OHSA states that every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of their employees. The OHSA aligns with s24 of the Constitution, the right, inter alia, to an environment that is not harmful to their health or wellbeing. The OHSA obliges employers to both identify and minimise the risk of exposure to COVID-19 at the workplace. This entails the implementation of other reasonable protective and preventative measures, aside from the vaccine, which employers should already have implemented.
Protecting employees and maintaining a healthy and safe business environment imposes obligations on employers to take appropriate steps to fulfil these obligations. Mandatory workplace immunisation policies mitigate the risk of contracting and spreading COVID-19 and thus fit tidily under this obligation. However, eager-minded employers should beware as there are many considerations to take into account before adopting such policies. These considerations involve a balancing act between the obligation to maintain a safe working environment and respecting employees’ constitutional rights.
The constitutional rights which would be impacted by a mandatory vaccine policy include: the rights to bodily and psychological integrity (s12 of the Constitution) and the rights to freedom of conscience, religion, thought, belief and opinion (s15 of the Constitution). The right to bodily integrity guards against unwanted invasions to the body, which a forced vaccine would certainly be. The rights to freedom of conscience, religion, thought, belief and opinion may also be impacted if it is against an employee’s personal or religious beliefs to take vaccines.
Notwithstanding the importance of all of these rights, there is a strong argument for the enforcement of a mandatory vaccination policy in specific workplaces. These are workplaces where contact between employees is necessary for the functioning of the workplace, and where unvaccinated employees would pose a risk of transmission to other employees and even to vaccinated employees who could carry the virus home to their families. Employers may argue that mandatory vaccination policies are essential in protecting the rights to life and to a safe environment, a safe environment they are obliged to take reasonable steps to create in respect of the OHSA.
The difficulty for employers lies in the uncertainty regarding the lawfulness of a mandatory vaccine policy, and potential repercussions in labour law and employees’ suits for unfair dismissal should the employer dismiss them for failure to comply with a mandatory vaccine policy. The employer’s obligation to provide a safe and healthy working environment and other employees’ rights to this environment is on one side of the scale; with the unvaccinated employees’ rights to bodily integrity and to freedom of conscience, religion, thought, belief and opinion on the other. Until laws or regulations are made dealing with mandatory vaccines, each case (if brought before a court of law) will be considered on an individual basis. The courts will consider whether it is lawful to limit any implicated rights for the sake of protecting other rights.
Section 36 of the Constitution provides a framework for limiting constitutional rights. Section 36 lists factors to consider before rights may be legitimately limited. These include: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. The limitation of a right must not be disproportional to the benefits it obtains, the balancing act and consideration of the above factors must weigh in favour of limiting the right. Here, the benefits of a mandatory vaccine policy must outweigh the infringement of the rights of those who do not wish to take it.
This balancing exercise will differ according to the scenario it is applied to, not all working environments are the same. The contact between employees, the type of work and contact with the public, the number of employees, the ability for those who refuse the vaccine to work from home, the risk to the other employees if some remain unvaccinated; all are relevant factors to consider in the lawfulness of a mandatory vaccine policy.
The prudent step for employers to take, in the absence of a mandatory vaccination policy, would be to encourage employees to get vaccinated through non-coercive and educational means such as vaccination awareness programmes. Such programmes must be structured to address employee concerns and objections. This will assist in ensuring that ignorance of the benefits of the vaccine is not the reason for an employees’ refusal. Employers should identify those employees who object on other grounds to the vaccine and take all steps, as far as practicable, to ensure that they are not in unsafe contact with other employees. Other preventative measures like ensuring hand hygiene, mask-wearing, working from home where practicable, and social distancing are also necessary to best comply with the OHSA.
For employers, the golden thread to take from this article is to take advice to whether the specific circumstances faced in that business or sections thereof justify the imposition of a mandatory vaccination policy. In instances where the danger and severity of consequences are low, forced vaccinations are not justified. Businesses’ vaccination policies should only impose mandatory vaccinations where necessary. A one size fits all approach is not sustainable, and it is for our courts to make decisions on a case-specific basis until more detailed and industry specific laws or regulations are made.
Vaccine registrations are currently open at https://vaccine.enroll.health.gov.za/#/
About the author
Kyle joined Dunsters from Rhodes University in 2021 (B.COM Economics, LLB). He has a multicultural background, growing up between Bahrain, England and South Africa.
Kyle is a strong-minded individual who is passionate about litigation and effectively guiding clients through the legal process.
On weekends you can find Kyle hiking in the mountains or tearing it up on a sports field – his forte being competitive rugby and cricket.