Proceed with caution: Employers have a right to insist that employees be vaccinated against Covid-19

With South Africa now fully immersed in a third wave of the Covid-19 pandemic and back in alert Level 4, only a small percentage of the population has been vaccinated and, of even greater concern, many continue to refuse the potentially life-saving medical intervention.

In circumstances such as these, can employers really insist that employees be vaccinated against Covid-19? Furthermore, in cases where an employee refuses to be vaccinated, what may legitimately be done by employers to ensure compliance with their own legal obligations to provide a safe working environment for all employees, as well as others with whom they have contact?

On 11 June 2021, the minister of labour and employment published revised Occupational Health and Safety Regulations in Certain Workplaces. In terms of the regulations, employers are required to implement workplace plans setting out how they intend to combat the spread of Covid-19 while their business is operational. The regulations further provide for employers to make Covid-19 vaccines a mandatory part of business operations, but require employers to identify the employees it seeks to insist receive a vaccine, the reason why they have been chosen, and to specify if they have any underlying comorbidities.

But what about employees’ constitutional rights to bodily integrity and freedom of religion, belief and opinion? Differently put, will employees identified by employers for mandatory vaccination be entitled to refuse to be vaccinated?

Section 12 of the Constitution protects every person’s right to freedom and security of their person. This includes the right to bodily and psychological integrity, which, in turn, includes the rights to security in and control over one’s body. When read with sections 6 and 8 of the National Health Act, it is clear that a person can only undergo a medical procedure with the patient’s informed consent. This is important in preserving the principle of autonomy of the person.

The only exception to the requirement of informed consent is where a court order has been granted authorising specific treatment, or where the health status of the patient poses a significant risk to the greater public.

Within the rubric of labour law specifically, the Occupational Health and Safety Act requires employers to take steps that are reasonably practicable to ensure a safe and healthy environment to employer, employee and members of the public.

In balancing of the constitutional rights of employees to refuse to be vaccinated and the duties placed on employers to ensure environments that are safe and healthy, mandatory vaccinations in the circumstances of a global pandemic may well be considered reasonably practicable.

Furthermore, annexure C of the regulations provide guidelines for employers should they introduce mandatory vaccinations in their workplaces. The guidelines specifically address the situation where employees refuse to undergo vaccination for reasons of constitutional rights or (religious) beliefs. In such circumstances, employers are required to respect the decision and take all reasonable steps to make the requisite accommodations to ensure that a safe working environment is maintained.

Unfortunately, the regulations fail to specify sectors and/or job descriptions that may legitimately be subject to mandatory vaccination programmes. Such sectors and/or job descriptions may include, but certainly not be limited to, workplaces where employees and members of the public come into close contact, care workers employed in private homes or other care facilities, teachers or people employed in open-plan workspaces.

Employers should take the opportunity in conducting a risk assessment to determine whether their operations pose a risk to the further spread of the virus. In workplaces where the provision of goods and services are of a close, intimate, personal and physical nature, employers must consider the implementation of a mandatory workplace vaccination plan.

Should an employee refuse a legitimate request from an employer to be vaccinated, and the requirements of the job or workplace make it impossible to accommodate that person, it may be considered reasonable for the employment relationship to be terminated. While the reason for the termination of employment may be considered fair, any such terminations would still need to satisfy the requirement of procedural fairness.

In view of the complexities and the enormous economic toll the pandemic has taken on the unemployment rate and household incomes in South Africa, employers are advised to obtain legal advice regarding whether or not mandatory vaccination plans are justifiable, or indeed indicated in their workplaces, and to proceed with caution when attempting to balance the rights in issue in a particular workplace situation. DM