Mandatory Vaccinations in the Workplace: An Option not to be pursued

MANDATORY COVID-19 VACCINATIONS IN THE WORKPLACE

 

AN OPTION NOT TO BE PURSUED

 

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The employer has an almost insurmountable mountain to climb should it wish to introduce a policy of mandatory vaccinations in the workplace.

 

The overwhelming regulatory requirements are seemingly disregarded by some employers (following the example of various corporates) announcing that they will simply be enforcing mandatory vaccinations on all their employees.

 

Before dealing with the obstacles which an employer needs to overcome, it is necessary to, once again, state NEASA’s position regarding this very contentious issue:

 

1. NEASA is unequivocally opposed to any policy aimed at forcing an employee to be subjected to mandatory vaccination, against his or her will;

 

2. NEASA’s position in this regard is based on:

 

• the constitutional right to bodily integrity and freedom of religion, opinion and belief;
• moral, ethical and legal grounds; and
• fundamentally, the individual’s uncompromised right of freedom of choice.

 

More on NEASA’s view here:

 

• Mandatory Covid-19 Vaccinations in the Workplace: Compensation for injuries, illness or Death;
• Mandatory Vaccinations in the Workplace: Freedom of Choice;
• Mandatory Vaccinations in the Workplace: Directive does not envisage a blanket approach
• NEASA does not support Infringing Mandatory Vaccinations
• WATCH: “Stand up to bullies” – In Response To The Current Global Health Predicament

 

The directions issued by the Department of Employment and Labour (DEL), which seemingly permit the implementation of mandatory vaccinations in the workplace, as well as the notice by the Compensation Fund Commissioner (‘the notice’), regarding compensation for employees who suffer injury, illness or death as a result of receiving a mandatory vaccine, impose stringent regulatory requirements on employers.

 

As it currently stands, the implementation of a mandatory vaccine policy in a workplace may well be an unjustifiable infringement of the constitutional rights to bodily integrity and freedom of religion, opinion and belief.

 

So where does this leave an employer?

 

The abovementioned issues require an employer, contemplating the implementation of a mandatory vaccination policy, to answer a number of questions it may be faced with and which, if not answered satisfactorily, may well expose the employer to a number of claims by employees.

 

The first question an employer should be asking may not be a legal one, as it deals with the morality of imposing a vaccine on a person against their will. It is clear from the directions from DEL, as well as the notice, that an employer may not force an employee to receive a vaccine against their will. However, the fact that an employee is forced to elect between receiving a vaccine or potentially being dismissed, effectively constitutes the enforcement of a vaccine.

 

Each employer should therefore answer the question as to whether it believes that it is necessary, required and morally justifiable to interfere with the freedom of choice of an individual by imposing a mandatory vaccination policy?

 

The second question an employer should ask is whether it has complied with the requirements of the direction for the implementation of a mandatory vaccination policy.

 

This question has to be answered within the broader context of the original Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, as the introduction of mandatory vaccination policies is simply an amplification of these directions, as well as the requirements of the Labour Relations Act, Employment Equity Act and the notice.

 

Therefore, in order to successfully implement a mandatory vaccination policy, an employer will have to answer the following questions:

 

  1. was a risk assessment conducted?

  2. if so, did the risk assessment take into account:

 

• the specific circumstances of the workplace;
• the requirements of the Occupational Health and Safety Act (OHSA) regulations for hazardous biological agents;
• the operational requirements of the workplace; and
• the obligations in terms of sections 8 and 9 of the OHSA.

 

  3. were the representative trade union and the Health and Safety Committee or any employee            representative consulted in respect of the risk assessment?

 

  4. were employees, who must be vaccinated, by virtue of the risk of transmission through their work    or the risk of severe Covid-19 disease or death due to their age or comorbidities, identified?

 

  5. in identifying these employees, were the following considered:

 

• is it an operational requirement for those particular employees to be vaccinated?;
• is it an inherent job requirement for those particular employees to be vaccinated?;
• was the employee informed of his/her right to refuse to be vaccinated on constitutional grounds?;
• was the employee informed of his/her right to consult with a Health and Safety representative, trade union official or employee representative?;
• where an employee refused to be vaccinated, was the employee counselled and allowed to seek guidance from a Health and Safety representative, trade union official or employee representative?;
• had there been a medical contra-indication for vaccination, was the employee referred for further medical evaluation?;
• where necessary, were steps taken to reasonably accommodate the employee in a position that does not require him/her to be vaccinated? (The directions do not indicate when this will be “necessary”, but it is submitted that it will be necessary to take steps to reasonably accommodate an employee who refuses to be vaccinated.);
• when considering “reasonable accommodation” was the Code of Good Practice: Employment of People with Disabilities, in terms of the Employment Equity Act considered?;
• why could the employee not be accommodated in another position / work area or alternative measures such as mask wearing, social distancing, amendment of working hours or working from home etc., not be implemented?;
• was the employee’s constitutional rights of bodily integrity and freedom of religion, opinion and belief taken into account?; and
• can the limitation of these rights, in terms of section 36 of the Constitution, be justified, based on the following criteria?:

 

   o is there a law of general application permitting the infringement of rights? (it is submitted that the          direction does not constitute a law of general application as it is very limited in scope);

   o the nature of the right;

   o the importance of the purpose of the limitation;

   o the nature and extent of the limitation;

   o the relation between the limitation and its purpose;

   o less restrictive means to achieve the purpose; and

   o all other relevant factors.

 

  6. was a plan developed or the existing plan amended which outlines:

 

• the protective measures in place for the phased-in return of employees; and
• the measures the employer intends to implement in respect of the vaccination of its employees?

 

  7. were the representative trade union and the Health and Safety Committee or employee                    representative in respect of the plan consulted?

 

  8. can the dismissal of an employee, who refuses to be vaccinated, be justified as fair, taking into        account the provisions of section 189 of the Labour Relations Act?;

 

  9. can the dismissal of an employee, who refuses to be vaccinated, be justified as fair, based on the    ill-health incapacity provisions, in terms of the Labour Relations Act?;

 

 10. can mandatory vaccination be justified as an inherent requirement of the job, based on the              following:

 

• is it a permanent feature of the job?;
• is it essential to the job?; and
• is it indispensable to the performance of the work?

 

NOTE: The directions require that the risk assessment and plan must have been completed within 21 days from the date of gazettal (21 June 2021). There is no indication as to the consequences of non-compliance with this timeline or whether an employer is still permitted to do so after expiry of said timeline.

 

The recent notice issued by the Compensation Fund Commissioner indicates that the Compensation Fund will only compensate an employee who suffers injury, illness or death, as a result of receiving a mandatory vaccine, if the employer has complied with all that has been set out above.

 

It is therefore clear that an employer who introduces a mandatory vaccination policy runs the following risks:

 

• unfair dismissal claims for compensation or reinstatement based on discrimination;
• contractual claims for damages due to breach of contract as a result of the dismissal;
• discrimination claims in terms of the Employment Equity Act; and
• delictual damages claims where an employee suffers adverse effects as a result of the vaccine and the employer has not fully complied with the requirements of the directions and the notice issued by the Compensation Fund Commissioner.

 

Employers should be aware that compliance with the directions is a massive and difficult task to be conducted within a, thus far, undecided area of labour law.

 

The implementation of a mandatory vaccination policy, and in particular, one that relates to all employees, seems to be a very dangerous road to take.

 

For more information:

NEASA Media Department

media@neasa.co.za