Can my employer force me to get vaccinated?

MANDATORY VACCINATION IN THE WORKPLACE – YOUR QUESTIONS ANSWERED

The media in South Africa has reported in the past few weeks that health authorities are predicting a fourth wave of new Covid-19 infections towards December this year and, it could not be ascertained as yet how severe it might be. Nevertheless, what is predominantly clear is that the pandemic is far from over, making it necessary for everyone to unite and share responsibility in observing health protocols.

Feeding into efforts of reducing infections is the government’s adjusted approach in placing restrictions in various social, religious, political, recreational and economic activities. Inevitably the economy has felt a slump not only in South Africa but elsewhere in the world. To alleviate this, methods have been explored to open up the economy to an extent that does not risk widespread infections. In this vein the Department of Labour and the business community reached an agreement under the auspices of NEDLAC in March, to allow business to have standing vaccination polices in the workplace.

Pursuant to this development there has been much talk in public discourse pertaining to the balance between keeping employees safe on one hand and constitutional rights on the other. Below we will delve into this discussion to shed light on some of the pertinent aspects in this matter.

  1. On what basis do employers derive an obligation to have standing vaccination policies in the workplace?

Employers derive an obligation under the Occupational Health and Safety Act 95 of 1993 to provide a safe working environment for employees. The obligation under this legislation requires employers to take necessary and reasonable precautions to ensure that the workplace is safe for employees to discharge their duties. In this context, this includes the duty to ensure that Covid-19 infections are alleviated.

  1. Does the law provide for mandatory vaccination?

It is imperative to draw dissimilarity between medical testing and medical treatment. Medical testing is whereby medical procedures are done to establish if a certain condition exists in an employee, while medical treatment is when after such condition has been established, further medical procedures are administered on the employee to reduce the effects or curb the condition. The latter includes vaccination, but is not provided for in our employment law. On the other hand, Section 7 of the Employment Equity Act, 55 of 1998 provides for medical testing where it is allowed by legislation and where it is absolutely necessary for the inherent job requirements.

  1. Can an employee be forced to take the vaccine?

No. Mandatory medical treatment is not provided for under our employment law and secondly, constitutional provisions afford justiciable rights to employees to make decisions regarding medical welfare and the integrity of their bodies.

  1. On which grounds can an employee refuse to take the vaccine?

In the Constitution of the Republic of South Africa Act 108 of 1996, Section 10 (dignity), section 12 (2) which provides for the right to bodily and psychological integrity, and section 15 which provides for freedom of religion, belief and opinion are grounds under which employees may refuse to take the vaccine. However, rights are not without limitation and section 36 of the Constitution provides for the restriction of rights within specific bounds. This limitation of rights must nevertheless be reasonable, least restrictive and justify its purpose in an open democratic society based on freedom, equality and dignity.

  1. What other options are there for employees who refuse to take the vaccine?

Under the regulations promulgated by the Department of Labour pursuant to the NEDLAC agreement in March, employers are urged to note the employee’s right to withhold consent to take the vaccine. Despite thereof and in keeping with the obligation to provide a safe working environment, employers are encouraged to explore and adopt ways to accommodate employees who withhold consent to vaccinate. These methods may include using more effective personal protective equipment (PPE) in the workplace, observing increased social distancing protocols between employees, or separating working premises for employees who vaccinate and those who do not.

  1. Is dismissal allowed should an employee refuse to take the vaccine?

While dismissal is not encouraged, it cannot be ruled out. However this must be an option of last resort where there is absolutely no other means to accommodate the employees who refuse to take the vaccine. In such scenario, employers will have to follow procedures to have the employees dismissed on incapacity grounds.

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