Mandatory COVID-19 vaccination in the workplace

Oct 6, 2021

In the past few weeks we have seen a lot of discussion and debate on whether COVID-19 vaccination should be made mandatory in the workplace. There has been many articles, comments, views and reactions in favour and against mandatory vaccination in the workplace on social media platforms and printed media.

The intention of this article is not to repeat or duplicate what has been said which are available elsewhere to read, or to endeavour to promote support, either in favour or against mandatory vaccinations, but to highlight important aspects that need to be considered by employers and to provide informative links where readers can obtain further information on the matter.

A number of employers have either announced their intention to implement or have already implemented mandatory vaccination policies while there are employers that are silent on the matter and have adopted a wait and see attitude. It is not clear whether either of these employers have considered and grasped the importance of accommodating all parties – those employees that are in favour of mandatory vaccinations and those that are against it. All employers face this dilemma.

There are legal guidelines and policy directives to assist employers in finding reasonable solutions to ensure workplace safety.

The Minister of Employment and Labour, recently published a new consolidated directive on occupational health and safety measures relating to vaccination in the workplace. Workers may refuse to be vaccinated in terms of their constitutional right to bodily integrity; the right to freedom of religion, belief or opinion, and medical grounds.

The National Health Act (NHA) stipulates that anyone receiving medical treatment must give their voluntary, informed, and specific consent to receive the treatment. However, no right is absolute and even that right can be limited. One such limitation is where non-treatment poses a serious threat to public health.

Mandatory vaccination policies present a complex balance of rights between those employees who hold strong religious, health or cultural objections against vaccinations and the rights of those who are more susceptible to severe effects or even death should they be infected with Covid-19. This clearly presents a conundrum to employers.

Various ‘specialists’ or ‘experts’ and other commentators have claimed that dismissals for refusing to be vaccinated in the workplace have been disputed and referred for adjudication. However, at the time of writing, we are not aware that employees have been dismissed for such refusal by any of the employers that have implemented a mandatory vaccination policy or that such dismissals have been referred as an unfair dismissal dispute.

This means that at present there is not yet any legal precedent relating to alleged unfair dismissals due to refusing vaccination in the workplace. It is expected that such cases will soon occur and we will have to see how the dispute resolution bodies and/or the labour court view and judge such cases in the near future. The outcomes of these referrals will give legal guidelines to both employers and employees and affirm their rights in such circumstances.

Below is a list of links that readers can access to obtain more information about this current uncertain and highly debatable matter.

World Health Organisation: Covid-19 health and safety in the workplace

To vaccinate or not to vaccinate: Mandatory COVID-19 vaccination in the workplace 

Employment and labour: New direction with regards to vaccination in the workplace

No jab no job – big business pushes for mandatory COVID-19 vaccinations in the workplace

South Africa: Guidance issued on mandatory vaccination policies for the workplace

Legal provision for mandatory vaccination in the workplace 

Cliffe Dekker Hofmeyr: An employers guide to mandatory workplace vaccination policies

Labourwise: Mandatory vaccination in the workplace

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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