The vaccination of health workers against Covid-19 has proceeded without encountering any significant resistance from their ranks. The second phase of vaccination, which involves the vaccination of essential workers, people in congregate settings and those with underlying comorbidities, will follow in about May.  

While Covid-19 is destroying lives and livelihoods, a legal debate is raging about whether an employer could make vaccination compulsory. In navigating their approach to the vaccine, employers will need to adopt a risk-based methodology and balance health and safety obligations with the constitutional rights of their employees.

If the achievement of herd immunity is the core objective for the government and employers, it can be accomplished without making vaccination compulsory, according to a recent survey conducted by the University of Johannesburg and the Human Sciences Research Council. The survey showed that 67% of the 10,618 respondents indicated they would most likely be vaccinated to protect themselves and others, while the 15% who were uncertain may agree to vaccination if they receive more information.

However, there are rumours about amendments to the disaster management regulations to reinforce the right to a safe workplace, which could advance mandatory vaccination at the workplace. With the wage negotiation season set to commence soon, it would be ideal for unions and especially big employers to conclude talks on vaccination issues before the vaccines for phase 2 arrive and the wage negotiations start, otherwise outstanding issues will make their way to the wage negotiation table.

To avoid unnecessary litigation and to protect jobs, individual employers and unions need to agree on the approach to deal with the non-vaccinated. For instance, where vaccination could be regarded as an inherent requirement of the job, or where people have to work together in confined spaces, there is uncertainty about the handling of those who are opposed to vaccination. On the other hand, workers in a low-risk environment who also need to be vaccinated to achieve herd immunity will have a stronger argument against vaccination, and agreement is also required to deal with this situation.

At the commencement of wage negotiations during the second phase of vaccinations, the initial thorny issue will be the handling of those participants who are not vaccinated, be that of own free will or because they have not yet qualified for vaccination in terms of the vaccination rollout priorities. The question would then be whether they would be allowed to physically participate in the wage negotiations. One must bear in mind that vaccination is not an absolute bar to contracting the virus, though it is said to reduce one’s chances of infection or severe illness.

The list of wage demands may also look very different in 2021, with Covid-19 having such an effect on employment. The focus will most likely shift to the social wage and job security. To counter a likely union demand for a moratorium on retrenchments, employers may see an opportunity to push for mandatory vaccination as a quid pro quo. Productivity will be linked to the aforementioned, and it will further strengthen an employer’s motivation for mandatory vaccination when Covid-19-related absenteeism of non-vaccinated employees (especially vulnerable employees) affects productivity.

Not all vaccination issues will be subject to negotiation processes as the practical consequences may determine an employee’s fate in certain instances. For example, with a “vaccination passport” that could become mandatory for international travel, migrant workers from neighbouring countries and employees who need to travel as part of their job may have no choice but to be vaccinated to be able to travel across national borders. Also, with so many contractors and service providers used at many workplaces, employers will probably also insist that only those service providers whose employees have been vaccinated may provide services at a workplace — to keep your job, you will have to be vaccinated.

It is also likely that employers will amend their conditions of service to make vaccination a prerequisite for new-entrant employment, which will complicate job-hopping for the non-vaccinated.   

During this window period various employers are following a sensible approach of awareness campaigns to persuade workers to agree to vaccination. This initiative will ensure a more informed workforce, making the mandating process for union-employer negotiations around vaccination much easier.

Meanwhile, and in the absence of vaccination agreements at most workplaces, indirect consequences for non-vaccination and the difference in death statistics between those who have been and those who have not been vaccinated, as well as information on side effects and a choice between vaccines, will hopefully enable workers to make an informed decision about what is best for them and for their dependents’ lives and livelihoods.   

• Du Plessis is general secretary of labour union Solidarity.


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