Vaccination in the workplace: Employers must strike a balance between health and safety obligations, and the constitutional rights of employees

Employers should anticipate (and may well have already experienced) opposition from those in their workforces who are resistant to taking vaccines for various reasons. Some may even be outspoken about their views and attempt to influence other employees to adopt a similar stance. 

With all the hype and hoopla about the vaccine on social media, employers should also anticipate the spread of fake news about the drug, which may undermine any “hearts and minds” campaign regarding a vaccination policy in the workplace.

The question on many lips, globally, is whether an employer has the right to compel an employee to receive the vaccine. 

Unlike in other jurisdictions, South Africa does not have a law governing the vaccine rollout. Without any statutory obligation to make vaccination compulsory, the complex yet unavoidable question facing South African employers is whether or not to adopt a mandatory Covid-19 vaccination policy in the workplace.

Employers undoubtedly have an obligation to protect their employees and to maintain a healthy and safe working environment, which could include a mandatory vaccination policy. However, the Constitution safeguards everyone’s – including employees’ – rights to life, belief and opinion, religion and bodily and psychological integrity, which includes the right to security in and control over their bodies. 

In navigating their approach to the vaccine, employers will need to balance health and safety obligations with the constitutional rights of their employees.

To strike the delicate balance necessary to navigate and respond to this question appropriately, employers need a full appreciation of the legal and other factors at play in their workplaces. 

We focus on the two main sources of pushback that employers will likely encounter in formulating their approach to the vaccine.

Health, safety and medical objections

Employees may refuse to receive the vaccine as a result of their concerns regarding its side effects, which may include anything from a fever and fatigue to severe allergic reactions in some reported cases. 

There are also those who fear unknown long-term effects of the vaccine, as well as the possible implications for those with auto-immune diseases or medical conditions preventing them from being vaccinated.

These concerns and fears may, in some instances, be justifiable. For instance, employees on certain medication may experience an adverse interaction between the vaccine and the medication.

In determining how to manage employees who raise these issues in response to employers implementing a vaccination policy, it is imperative that employers are well-informed about the risks of the vaccine and are sensitive when weighing up these concerns. 

Employers should be equipped with answers to questions relating to which vaccine employees will be receiving; what the risks are of the vaccine; whether the employer permits them to consult their doctor prior to receiving the vaccine and whether the employer is willing to pay for any such consultation. 

In addition, and where employees are willing to be vaccinated through the employer-driven initiative, employers should have a proper protocol in place to ensure that even those who do not raise concerns are properly informed about the potential side effects of the vaccine, particularly where they are on certain medication.

The imposition of a vaccination policy in the workplace has the potential to generate discrimination issues (most notably on the grounds of disability, age and/or religion or belief). 

In addition, employers will need to appreciate the fact that they may well be liable for employees who later experience adverse health effects as a direct result of the vaccine.

Religious and cultural objections

Employers may likewise confront pushback from individuals who are averse to the manner in which the vaccine is developed and/or manufactured for religious or similar reasons. 

Recently, the EFF’s Julius Malema addressed “unscientific” and “illogical” theories currently spreading in South Africa, including the idea that the vaccine is a population control mechanism aimed at wiping out Africans. 

Our courts have held that employers need to remain cognisant and respectful of cultural differences and views if genuinely held. 

Proponents and opponents of the vaccine on cultural grounds due to, among other things, a fear or distrust of Western medicine, is something employers should anticipate and be sensitive to. Employers should avoid discounting these concerns out of hand.

Employers should strive to take these religious and cultural objections seriously and aim to respect and accommodate these views, to the extent that they are genuinely held. 

In order to fall within the bounds of the law and to maintain good employee relations, employers should likewise lightly walk the tightrope between fulfilling its health and safety obligations to its workplace at large and addressing employees’ concerns carefully. This may be achieved by catering for a case-specific, sensitive approach to each objection.

The key takeaway is that, while employers are likely excited about the arrival of the vaccine and prospects of it positively impacting business activities going forward, they should not approach the imposition of a vaccination policy in the workplace too hastily. 

Considered legal advice – based on specific context, operational needs, employees and business – will be indispensable to this exercise. DM

Lauren Salt is an executive in the employment department at law firm ENSAfrica. Jessie Moore is a candidate attorney at ENS.