Newsflash! Mandatory Vaccination

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South Africa is in the third wave of COVID-19 infections which appears to be more widespread than the second wave, with more virulent strains of the virus going around. Globally, governmental efforts have successfully developed testing methods for the virus and different vaccines in response to the pandemic. The 17th of May 2021 also marks South Africa’s second phase of the rollout of COVID-19 vaccinations.

This pandemic’s risk of severe illness and death is most strongly associated with the elderly and those living with comorbidities. These groups have a much higher risk of mortality and hospitalisation than others, so it is critical that they are prioritised for vaccination during the coming months.

Given the impact of COVID-19 on employers and employees in the work environment, the prospect of vaccination is also particularly attractive to businesses.

Employers who wish to explore the introduction of workplace policies and procedures which drive mandatory vaccination protocols must however tread carefully. The Government of South Africa has made it clear that whilst vaccination was encouraged, it would not require or force South African citizens to become vaccinated.

Currently, it is safe to assume that the Government will not seek to legislate compulsory COVID-19 vaccinations. However, compulsory vaccination has become increasingly contentious and there are significant legal and moral aspects to be considered.

The legal risk upon employers adopting policies and procedures in the workplace that require employees to be vaccinated on a mandatory basis might violate section 12 of South Africa’s Constitution. This section guarantees every citizen the right to freedom and security and specifically, section 12(2) provides that every person has the right to bodily and psychological integrity. This includes the right to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent. These rights are however not absolute.

Although employees have a right to choose whether to be vaccinated, their choices may impact on their right to employment. So, though an employer cannot force an employee to be vaccinated, under certain circumstances it may be fair to exclude an employee from employment because of their failure to do so.

Employers may be able to cite inherent requirements of the job or genuine operational requirements as a reason for requiring mandatory vaccination. Whether these would be valid claims must be determined on a case-by-case basis.

Where, for example, pilots require proof of vaccination to gain entry to foreign countries on their flight routes, vaccination becomes an inherent requirement of the job and failure to vaccinate may render an employee liable for dismissal based on incapacity.

In the context of frontline healthcare workers who conduct Covid-19 testing, it would be easy to argue that vaccination is essential to protect employees from becoming infected and from infecting any patients they come into contact within the scope of their duties, or from contaminating test results. Vaccination is the only proven effective measure for preventing infection and transmission of the disease, and measures such as social distancing and the use of masks are inadequate in this context.

Where an employer’s operations require employees to work in close quarters in enclosed spaces, such as working underground in mining operations or factory workers working shoulder to shoulder in a production line, requiring employees to be vaccinated would be a legitimate response to a genuine operational risk. Where social distancing cannot be effectively achieved, employees cannot be trusted to comply with safety and hygiene protocols, and the risk of interpersonal transmission is high, the employer is entitled to mitigate this risk in the most effective manner available to it to ensure a safe working environment, while still maintaining optimum efficiency in the workplace. This would represent a genuine operational requirement which employers could enforce, and any employee refusing to comply in getting vaccinated could face retrenchment.

One must remember that with incapacity and operational requirement proceedings employers are still required to explore viable alternatives, and dismissal must be a recourse of last resort. The employer must ensure that they can justify why vaccination is mandatory in the context of their specific operational needs.

It must also be noted that mandatory vaccination will only truly become an issue of contention once vaccination is widely available to the public, which is currently not the case. If the vaccine is not available to a certain category of employees per the Government’s roll-out plan, they cannot be required to be vaccinated and any action against such employees would be considered unfair.

In conclusion, although vaccination for COVID-19 is not compulsory by law, mandatory vaccination policies may be implemented if it is justified in terms of a company’s operational requirements or an inherent requirement of the job. Employees still retain the right to choose whether to be vaccinated, but their choice may impact on their right to employment.

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