In the past two years, the labour industry has been hard hit by the COVID-19 pandemic, and employers have since sought answers and solutions for an unforgiving economic environment. One of the most popular and most controversial topics regarding this is mandatory vaccinations in the workplace and how to go about it.
Implementing mandatory vaccinations in the workplace is not a straightforward task, to say the least. Employers need to consider the circumstances of each case and then determine who must be vaccinated based on the company’s operational requirements by developing a vaccination plan. The employer needs to conduct a COVID-19 risk assessment evaluation by taking into account the business’s operational requirements, the position the employee fills, the employee’s individual health aspects, and contact that the specific employee makes with other employees, customers as well as the general public.
The question of whether it is legal to force employees to be vaccinated is currently being tested by the Courts, however, in the interim, the Department of Employment and Labour has issued a Code of Practise No. 46043 on the 15th of March 2022 that sheds some light into mandatory vaccinations as well as the refusal thereof. The Code of Practise states that if an employee refuses to be vaccinated, the employer must counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official or take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
When looking to the Constitution for direction regarding the legality of mandatory vaccinations, there are no laws clearly governing the same in our legal framework. However, a few sections stand out. Section 12(2) of the Constitution which states everyone has the right, among other things, to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent. Furthermore, Section 15 of the Constitution states that everyone has the right to freedom of conscience, religion, thought, belief, and opinion. It appears that in terms of sections 12 and 15 of the Constitution, employees may have a legal argument as to refuse mandatory vaccinations.
However, in terms of Section 36 of the Constitution, such rights listed above are limited and must be balanced against those of the community if there are reasonable grounds. Furthermore, employers have a duty to ensure a safe working environment for all employees in terms of the Occupational Health and Safety Act, 85 of 1993, which could be challenged against the Constitutional rights mentioned above.
The first step to determine the legality of mandatory vaccinations has already started at the CCMA in the arbitration between Gideon J Kok and Ndaka Security and Services (FSWK-2448-21), where the Commissioner found that the employer was entitled to suspend the employee, namely, Mr Kok who refused to be vaccinated where the employer had a zero-tolerance policy for non-vaccination, and the majority of the other employees were vaccinated. The Courts have gone further in Solidarity obo Johetta van Rensburg v Erenst Louw, a Division of Hudago Trading (Pty) Ltd (LC) 49/22, to dismiss an application brought by an employee who wished to declare the employer’s admission policy unlawful. The admission policy required the employee to be either vaccinated or produce a PCR test before entering the employer’s premises. The courts found that there was no breach in respect of the contract of employment and that the employee, in this case, was given an alternative to vaccination. It is clear from the above that employers have recourse against employees who refuse to be vaccinated but considering each employee’s circumstances is of utmost importance.
Article by: Dirk Hamman
Dispute Resolution Official – Klerksdorp