The first batch of COVID-19 vaccine has arrived in the country and more is expected to arrive in the coming months. The Government aims to vaccinate 40 million of the country’s total population of 59.6 million by end December 2021. This it says will create ‘herd immunity’, that is, when most of the population is immune to the disease which provides indirect protection to those who are not immune to the disease.
Although the Government is encouraging all citizens to have the vaccination, it has also categorically stated that no one will be forced to take the vaccination, meaning that it will be voluntary for everyone and that no one will be forced.
What then is the situation when it comes to employers and their workplaces? Can employers force their employees to be vaccinated against COVID-19?
The answer to this question is uncertain as there is currently no legal precedent in this regard. It is expected that cases could soon be referred to the Labour Court which will give judgement and provide guidelines to employers.
When the long-awaited vaccine is available, employers will want to ensure that the vaccine is administered optimally, including the need to ensure that all employees are vaccinated. Many employers will be in very tight economic circumstances and will be operating on a reduced workforce.
What if employees refuse the vaccine? There are people who are pro-vaccine, the vaccine supporters and those that are anti-vaccine, the vaccine objectors.
Should, say 10% of the workforce refuse the vaccine and several of those get ill, it will increase the pressure on the employer and will make it more difficult to run the business effectively due to high numbers of employees being off work on sick leave or isolation leave.
In addition, the employer’s customers/clients who have not had an opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.
For these reasons it is suspected that many employers will want to develop policies that require all employees to be vaccinated.
However, in the absence of a Court ruling and juris prudence on the matter, the enforcement of such policies will be problematic. Therefore, we are at present guided by South Africa’s Constitution and current applicable labour laws.
Constitution and labour laws
Section 12(2)(b) of the Constitution gives every person the right to “…..security in and control over their body”. Section 15 gives everyone the freedom of religion. Thus, forcing an employee to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution.
On the other hand, employers that are determined to enforce compulsory vaccination, will counter argue by referring to Sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As COVID-19 is causing a significant number of deaths, those people who have to come in contact with vaccine objectors will be under threat of contracting the deadly virus, and their right to life will be infringed.
Section 24 gives everyone the right to a safe environment. A workplace with unvaccinated employees will not be safe. Furthermore, the Occupational Health and Safety Act obligates employers to ensure a safe workplace.
Due to these potentially conflicting constitutional and legal provisions the question of whether employees can be forced to be vaccinated is highly contentious. Therefore, employers will have to approach this with caution.
Section 36 of the Constitution provides that, under certain circumstances, the constitutional rights of people may be limited taking into account factors such as the nature of the right and the importance of the purpose of the limitation/restriction.
Furthermore, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over one’s body. This means that it is legally possible to detract from or limit these rights if the reason for doing so is strong enough.
Another way to put it, individual rights do not outweigh the collective rights of a community/public/workplace. The challenge will be to convince the Court that, under the circumstances, the rights of an individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such as the provision of a safe workplace. As alluded, due to the fact that the enforcement of the taking of the COVID-19 vaccine is such a new issue there are as yet no court findings that can provide a precedent.
Where an employer considers forcing employees to take the vaccine, it should first obtain expert advice whether the specific circumstances (the nature of the business, workplace, product, etc.) that prevail would justify such forced vaccinations. In order to consider such a step, there need to be a very clear and present danger of severe consequences to the workplace not being vaccinated.
Should employers in the future be legally permitted to force their employees to be vaccinated because there are severe consequences to the workplace not being vaccinated, the policies and terms of conditions of employment will have to be amended to include such vaccination. In order to do this, employers will have to obtain their employees’ consent to effect such changes.
Until such time there is legal precedent and for employee relations reasons, it will be wise for employers to get employees to agree to the vaccination through the use of education, information, consultation, discussion and non-coercive persuasion.