BY Lauren Salt AND Jenna Batt
Can employers justify compelling employees to receive the COVID-19 vaccine?
South African law currently does not have any legislation that specifically requires employees to take the COVID-19 vaccination. The president was also emphatic that no one would be forced to take the vaccination, which is being rolled out in a governmental attempt to vaccinate 67% of the population (approximately 40-million people in South Africa).
In the previous article in this series, we discussed employees’ constitutional rights to bodily integrity, culture and religion in anticipation of pushback against the vaccine. However, in this article, we explore further whether these rights can be justifiably limited in the context of an employer’s obligation to create a healthy and safe working environment. We also deal with whether being vaccinated could be considered to be an inherent requirement of the job.
As a starting point, the Occupational Health and Safety Act, 1993 (“OHSA”) states that, “[e]very employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.” A similar provision is contained in the Mine Health and Safety Act, 1996 (“MHSA”). In addition, the National Health Act, 2003 (“NHA”) stipulates that a health service, which would include the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat the said person will result in a serious risk to public health.
The question then becomes whether an employer could, taking into account these statutes, implement a mandatory vaccination policy in the workplace. As mentioned in our previous article, an employer’s obligation to provide a safe and healthy working environment and employees’ constitutional rights to bodily integrity, religion, culture, and the like, will need to be balanced in the assessment of whether there are justifiable grounds to limit the rights.
In light of the seriousness of the spread of COVID-19 and the risk it poses to public health, if employees are not vaccinated, they pose a danger to other (vaccinated and unvaccinated) employees. Vaccination is not an absolute bar to contracting the virus, however, it is said to reduce one’s chances of contracting the disease. The justifiability of the limitation of any constitutional rights will need to be considered on a case-by-case basis. However, conceivably, infringement of an employees’ rights may well be justified on grounds such as the employer’s operational requirements or health and safety considerations in certain circumstances. There could be, for instance, an entire workforce that is working remotely and as such, there is far less chance of them contracting the virus as would be the case in a densely populated working environment. In these circumstances, the limitation of an employee’s constitutional right to bodily integrity would likely not be justified on the basis of an employer’s health and safety obligations.
Aside from an employer’s health and safety obligations, could vaccination be an inherent requirement of the job, for instance, in the context of healthcare workers?
The Labour Court has held that for a requirement to be inherent it must be so intrinsic that if not met an applicant would simply not qualify for the post and that the indispensable attribute must be job related. If the job can be performed without the requirement, then it cannot be said that the requirement is inherent.
In addition, and in the Supreme Court of Appeal in Department of Correctional Services and another v Police and Prisons Civil Rights Union and others, it was held that a policy is not justified if it restricts a practice of religious belief and by necessary extension, a cultural belief, that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense.
If an employee were not to be vaccinated, it has the potential to impact on the safety of the public as well as other employees. It could therefore be argued that there is a rational connection established between purported purpose of the limitation of their rights and the measure taken, being the implementation of a mandatory vaccination policy in the workplace. However, the link is quite tenuous when considering what an inherent requirement of the job is in terms of the Labour Court’s view. Could a healthcare worker conduct their work absent the vaccination? The answer is yes (provided they do not contract the virus). In this instance, it would unlikely be an inherent requirement of the job. However, if an international air hostess were to be precluded from entering the countries on her flight route without having had the vaccination, this would inhibit her ability to perform her duties. In these circumstances, an argument that the vaccination is an inherent requirement of her job would likely be more successful.
Perhaps a justification could also be sought in the employer’s broader operational requirements.
The question becomes if employees refuse to be vaccinated, what next? Can the employer discipline them? Can the employees claim discrimination? Is the employer obliged to accommodate those employees, and under what circumstances. Stay up to date with the answers to these questions in our upcoming articles in the COVID-19 vaccination series.
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