Can you force your employees to be vaccinated against Covid?
The constitution provides for protection for employers and employees in this unprecedented situation
Workplaces were a place of terror in 2020 due to the physical and financial dangers posed by Covid-19. The slow rollout of vaccines means we can expect 2021 to be just as bad, if not worse.
Covid-19 is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy continues to weaken seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does not inspire confidence that it can rescue the economy. And, to make matters even worse, money for state aid to businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far.
The only light at the end of the long, dark tunnel is a vaccine, but its slow rollout has dulled that light significantly. As a result, when the long-awaited vaccine is finally made available, business managers will want to ensure that it is are administered optimally and that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in dire economic straits and have very lean staff complements.
Should even 10% of staff refuse to be inoculated and several of those employees fall ill, management will face increased pressure, making it more difficult to run the company effectively as employees take sick leave or self-isolate.
In addition, clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.
For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. There are constitutional reasons for this. Section 12(2)(b) of SA’s constitution gives every person the right to “... security in and control over their body”. In addition, section 15 gives everyone the freedom of religion. Thus, forcing an employee to be vaccinated under pain of disciplinary measures could, in certain circumstances, be argued to be in violation of the constitution.
However, employers who are determined to enforce compulsory vaccinations could use sections 11 and 24 of the constitution in their defence. Section 11 gives everyone the right to life. As Covid-19 has caused so many deaths, vaccine objectors may pose a risk of spreading a deadly disease to people with whom they come into contact, and so their right to life would be infringed.
Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act stringently obligates employers to ensure a safe workplace.
These potentially conflicting constitutional provisions make forcing employees to accept vaccination highly contentious, with the bulk of advice on this issue leaning towards a cautious approach.
Employers should be aware of section 36 of the constitution, which provides that, under certain circumstances, the constitutional rights of people may be limited when taking into account factors such as the nature of the right and the importance of the purpose of the limitation.
In addition, the table of non-derogable rights in the constitution includes neither the right to freedom of religion nor to security or control over one’s body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.
The challenge will be to convince a court that, under the circumstances, the rights of an individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such the provision of a safe workplace. Enforcement of a Covid-19 vaccination is a new issue so there is no court precedent.
In the end, an employer who considers forcing employees to get inoculated will first have to get expert advice on whether prevailing circumstances would justify such a drastic step. There would, at least, need to be a clear and present danger to workplace employees who are not vaccinated.
For labour relations and legal reasons, it would be prudent to get employees to agree to be vaccinated through the use of education and non-coercive persuasion. Where this fails, and where it is viable, the employer could consider arranging for objectors to work from home or place them in locations that reduce the risk of transmission, while also enforcing the normal workplace safety restrictions.
• Israelstam is CEO of Labour Law Management Consulting.
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