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21st March marks a significant day on the South African calendar – Human Rights Day, as it reminds South Africans of the huge sacrifices that accompanied the struggle for democracy and the establishment of a non-racial, non-sexist society in which civil liberties such as freedom of speech, religion, association, and movement are upheld.

Now more than ever Human rights have never been so important in how each, and every one of us have responded to COVID-19. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone, and preserving human dignity.

This is not a time to neglect human rights; it is a time when, human rights are needed to navigate this crisis in a way that will allow us, as soon as possible, to focus again on achieving equitable and sustainable development.

With the second tranche of vaccines having touched down at OR Tambo International Airport on Saturday and South Africa currently not having any legislation governing the vaccine rollout.

It is to this end that we unpack the topic of ‘NO JAB NO JOB’.

  • Should employers consider implementing a mandatory vaccination policy?

  • How does an employer deal with employees or applicants for employment who refuse to be vaccinated?

  • Are beliefs regarding vaccinations, IE) veganism, health related concerns, religion etc legitimate grounds for an employee to refuse to comply with a mandatory vaccine policy?

There are NO legal restrictions on mandatory vaccinations policies. The introduction of such policies will need to be assessed against the principle of reasonableness. Health and Safety litigation at the commencement of lockdown evidenced that the courts are of the view that binding national Health & Safety guidelines which present a uniformed approach are necessary to protect employees. In addition, the decisive action taken by the government to implement lockdowns indicate the seriousness with

Does the implementation of a mandatory workplace vaccination policy constitute a unilateral change to terms and conditions of employment?

Yes, therefore employees would need to be consulted prior to implementation.

What considerations should an employer contemplate when determining whether to implement a mandatory vaccination policy?

  1. Viability of continued remote work and the effectiveness of social distancing in the workplace.

  2. Number of vulnerable employees in the workplace.

  3. Effectiveness of additional PPE, where necessary.

  4. Number of employees exposed to the public.

  5. The rate of infections and/or fatalities in the workplace because of COVID-19.

  6. Number of employees required to travel domestically and internationally for work related purposes, particularly if the vaccine is made mandatory for international travel.

  7. Number of employees with cultural, religious, and medical objections to inoculation.

  8. Whether the employer is prepared to subsidize or pay for the vaccination of employees who would not otherwise be in a position, to afford the vaccine.

On what grounds may an employee object to being vaccinated?

  1. Medical objections & safety concerns

  2. Religious, cultural, or philosophical objections

Where an employee elects not to be vaccinated notwithstanding domestic and international travel being an inherent requirement of their role, if the vaccine is mandatory for international travel, what options are available to employers?

  1. An employer may wish to consider alternative placement and/or continued remote work where possible.

  2. Where an employee cannot perform their role due to their election to not be vaccinated, and alternative placement and remote working are impossible, an employer may be in a position, to dismiss the employee on the following grounds depending on the nature of the circumstances:

  • Inability to perform in line with their employment agreement.

  • Operational requirements.

  • Potentially incapacity.

  • Potentially insubordination where the instruction to be vaccinated is reasonable.

Can dismissal or the exclusion of an employee who refuses a vaccine from the workplace amount to unfair discrimination?

The test is for unfair discrimination and not simply discrimination. In order, for the dismissal or exclusion to constitute unfair discrimination, the discrimination would need to be arbitrary, have the ability, to impair the dignity of the employee and the instruction to be vaccinated would need to be unreasonable. Whether an employee has been unfairly discriminated against will also depend on whether all suitable alternatives were considered and whether the employer properly considered the employees objections.

Should a mandatory vaccination policy be limited to those employees who are vulnerable, have contact with the public and/or those employees whose roles requires frequent domestic and/or international travel?

Not necessarily. Many employees who do not fall within these categories may still be susceptible to severe effects of COVID-19 and with the mutation of the virus and the uncertainty pertaining to the science related to the disease, a limitation on this kind may render the vaccination policy ineffective.

How does an employer manage religious and/or cultural exemptions to being vaccinated?

All objections by employees must be considered on the facts of the case before them taking into, account the evidence produced by the employee for their objection to obtaining the vaccine. The objection of the employee must then be balanced against the risk and impact of COVID-19 in the particular-workplace and the rights of all employees to a safe working environment.

There are many other considerations for employers to take cognizance of before implementing these policies, these include but are not limited to: the impact of POPI; Impact of Employment Equity Act on mandatory vaccination policies; interplay between OHSA and a mandatory vaccination policy and any liabilities that result from an employee consenting to the workplace policy who experiences adverse effects as a result, of the vaccination.

Employers should also bear in mind that vaccinations will also not offer total immunity. Employers cannot therefore rely on it as a control measure when planning for, the future they must also ensure other COVID-secure measures are in place.

There is no single company vaccine response plan. The “right fit” will depend on a variety of different factors: industry, geographic location(s), healthcare supply chains, industries might mandate vaccines as a matter of employee safety; others might feel less need to do so.

Keeping track of what is certain and taking a risk-benefit approach will help elevate uncertainties and, over time, eliminate them to evolve action plans.

Article sources:

Cliffe Dekker Hofmeyer: Employer’s Guide to Mandatory Workplace Vaccination Policies

Article By:

Tiffany Reed: HR & EE Consultant - Compliance Hub

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