COVID-19: TO BE VACCINATED, OR NOT TO BE VACCINATED, THAT IS THE EMPLOYER’S QUESTION.

Posted on Posted in Labour Law

President Cyril Ramaposa, addressed the nation in early February 2021 with regard to the Covid-19 pandemic, during which he announced that no one will be forced to take the vaccine should they not want to, nor will they be forbidden from travelling, enrolling in school or from taking part in any activity if they have not been vaccinated.

With our country being on the cusp of a nationwide rollout of the Covid-19 vaccine, this has resulted in a mixed bag of reactions from the public.  Whether it is the uncertainty regarding the efficiency of the vaccine, or just plain composition thereof, some citizens are outright refusing to get their jab.

Whatever the case may be, this has prompted numerous questions from both concerned employees, as well as employers.  Most notably, whether an employee can be legally forced to be vaccinated before returning to work.

From the outset it must be noted, that any attempt by employers to “force” their employees to take the vaccine, or impose a mandatory vaccination policy, must be treated with caution.

In contrast to section 7 of the Employment Equity Act, 1998 which deals with medical testing of an employee, South African legislation does not regulate when employers may require employees to undergo medical treatment. This is a point of departure, whether or if an employee can be legally obligated, to be vaccinated prior to his / her return to work.

Several factors need to be weighed up, most notably, a person’s Constitutional right to bodily integrity.

This right is confirmed within sections 6 to 8 of the National Health Act which regulates that the consent of the person is required before any health service is to be provided to them. As such, a person is to give specific consent to the specific health service they are to receive. It furthermore requires the health care worker to inform a person of his / her health status (unless the disclosure thereof would not be in the best interest of the person), possible alternatives to the service envisioned, both benefits and risks associated with the health service as well as the person’s right of refusal of any of the services. Apart from the apparent informed, specific and voluntary consent that is needed before any health service is to be administered to a person, a court of law is able to authorise the service should the failure of authorising it result in a “serious risk to public health”.

When looking at a company’s workforce, obligations exist where employers are required to ensure a safe working environment for not only their staff, but also persons who wish to enter the premises. Ever wondered why your hands are continuously sprayed with hand sanitiser before entering a store? Well, there you go.

Well, what about instructions given to staff to be vaccinated? As a point of departure, it must be ascertained whether such an instruction would constitute a “reasonable instruction”. This again, must be weighed up against an employee’s Constitutional rights, such as their right to freedom, right to security of person, bodily and psychological integrity and the right to enjoy religious and cultural freedom. Although no right is absolute, cognisance must be given to any affected rights.  

This obligation must not be blown out of proportion as the Occupational Health and Safety Act, 1993 only makes provision for an employer to do that which is “reasonably practical”, given the circumstances of nature of the workplace, the work to be performed and other means to either mitigate or remove threats.

Conscious decisions regarding the possible consequences and effect mandatory vaccination will have on an employer and his or her employees, must be balanced against the employee’s own rights. In the event where an employee is not able to perform his or her duties as a result of the company policy requiring them to be vaccinated, therefore excluding them from the workforce, this at its core undermines the nature of consent. However, should the employee be able to perform their functions remotely, such as from home, then consent would not be affected. This has to be aligned with the employee’s job scope where remote work is viable.

Certain situations would allow for a mandatory vaccination policy, especially in work areas where there are a lot of employees in close contact with one another. In circumstance such as this, subject to there being no less intrusive means to ensure a safe working environment, a mandatory vaccination policy which ensures that there is no risk to public health, may be imposed.

In conclusion, as there is no outright law that governs whether a person can be required to be vaccinated, it is therefore recommended that employers meaningfully engage with their staff about any concerns, benefits and alternatives regarding the administration of a vaccination in the workplace.

Are you considering imposing a form of mandatory vaccination policy? If so, we recommend seeking legal assistance.

Kindly contact our offices to schedule an appointment.

Tel:               012 111 0231

Email:           nicolaas@sdnel.co.za

Written by Nicolaas Venter