You may refuse to be vaccinated, but mind the consequences
Employees refusing to be inoculated could face dismissal and will probably struggle to find the same job elsewhere
The department of employment & labour’s amended occupational health and safety directive on mandatory Covid-19 vaccination in the workplace has provoked renewed unhealthy debate between pro- and anti-vaccination groups.
Key details that have been largely overlooked in this debate pertain to mandatory vaccination applying only to elderly high-risk employees, employees suffering from comorbidities, and employees engaged in risky work where the virus can spread rapidly.
The risk of dismissal
The draft directive contains guidelines on which vulnerable employees could be dismissed should they resist vaccination. During the debate on this concept in the National Economic Development & Labour Council (Nedlac) the department and Business for SA (B4SA) were in favour of a “dismissal clause”. However, the trade union federations won the day, and the clause was scrapped.
Unlike Filipino employees, whose choice is limited given President Rodrigo Duterte’s message — “You choose: the vaccine or I will send you to jail” — the directive provides for freedom of choice in that designated employees may refuse vaccination on medical or specific constitutional grounds.
In the event of refusal employers must, among other things, consult further, provide guidance and, if reasonably possible, accommodate the employee in another position.
While most employers should be sensitive to an employee’s freedom of choice and as it is would be wary of legal action against them, dismissal — whether unlawful or not — remains a risk for a designated employee. Thus, B4SA informed its members that the directive does not prevent employers from dismissing employees who cannot be reasonably accommodated.
Sibanye-Stillwater, which has accreditation to vaccinate its employees, has recently started dispensing doses and has told designated employees it is an opportunity to get preferential vaccination to counteract their vulnerability. While this process is voluntary, the mining house has indicated it may change its stance.
A designated employee who loses his or her job by refusing vaccination can rest assured that there would be a trade union or lawyer who would contest the dismissal. What must be kept in mind is that test cases must still ensue to provide legal certainty, and legal proceedings can be protracted.
Moreover, when you lose your job you do not just step into a new one. If your current employer categorises your job as high risk, the new employer may well take the same stance and your chances of being employed in the same position as your case is playing out in the courts are remote.
If an employee’s reason for dismissal is related to refusal to be vaccinated, it is unlikely that another employer would hire them.
Freedom of choice
Regarding consultation with employees who are hesitant to be vaccinated, it is important to note a recent study in the UK published by Lancet Public Health. A key finding was that the message to those strongly hesitant should focus on the personal benefit rather than the collective benefit.
This was the approach followed by SA’s department of basic education in its communication with hesitant educators. It emphasised that while they will not be forced to be vaccinated, teachers should bear in mind that vaccination prevents severe illness or death from Covid-19.
The five SA teacher unions have also urged their members who have not yet been vaccinated to do so, and have used the same argument as Sibanye by encouraging teachers to take advantage of the special dispensation for educators to be vaccinated ahead of the general population’s age-based rollout.
Employees who resist vaccination should also bear in mind that employers are likely to identify them — with good intentions — to protect employees against serious Covid-19 consequences. However, there may well be employers who abuse this directive by identifying all employees who are at risk to limit long-term absenteeism due to Covid-19. That said, employers will find it difficult to circumvent the risk analysis guidelines.
Ultimately, employees will have to accept responsibility for their choice. It is important to base the decision on the right reasons, not prejudice against the government or fake news on social media but rather the advice of a medical practitioner, and by taking note of other countries’ vaccination successes. In this regard, it is worth noting that nearly all Covid-19 hospitalisations and deaths in the US are now among unvaccinated people, according to US government data analysed by the Associated Press. It is now common in the US to refer to a “pandemic of the unvaccinated”.
Paramount in this debate is that legal arguments about employees’ rights and freedom should never trump the medical and scientific facts concerning Covid-19 and its threat to human life. In addition to the medical benefits, there are positive workplace consequences. Once vaccinated your job is 100% safe as far as vaccination is concerned.
Employees need to think carefully about their vaccination choice. Should they later realise that they have made the wrong choice, it might be too late, and they can then blame only themselves for the consequences.
• Du Plessis is general secretary of union Solidarity.
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