To vaccinate or not: what should employers do?
FOLLOWING the rise of a second Covid-19 wave in many countries, vaccines are in high demand. While desperate to resume pre-pandemic operations, businesses in South Africa find themselves in a tricky position. Should they enforce vaccinating workers to ensure a safe work environment, as well as operational continuity? If so, they risk a legal battle with employees who have a constitutional right to refuse the vaccination in order to have their religious customs and beliefs respected.
Should businesses choose not to enforce vaccinations, they could be putting employee wellness at risk in their attempt to avoid the legal and financial implications of compulsory vaccination programmes. While balancing employee and employer rights in such a situation can feel like a minefield, this is where Temporary Employment Solutions (TES) providers can assist organisations in creating a healthy workplace, mitigating the clash with employees.
Although employers have an obligation in terms of the Occupational Health and Safety (OHS) Act to provide a safe workspace, employees have a corresponding Constitutional right to security and control over their bodies. In addition, South Africa has partnered with a global access initiative to secure vaccination supplies which is likely to start rolling out in a phased approach from the middle of this year (2021). This means that businesses still have little time to consider their vaccination policy to try to ensure the company is best positioned for operational continuity; however, all while making sure this is done in a manner that respects the rights of their workers.
Our government has advised that vaccinations are not compulsory. Until this changes, each organisation must determine the role that the vaccination should play in ensuring Business Continuity (BC). Where it is not feasible for employees working in close proximity to adhere to Covid-19 prevention protocols, this could possibly require a mandatory vaccination policy. However, there are many businesses where employees can maintain physical distancing while sanitising frequently, which would mean that a mandatory vaccine is not necessarily required for operations to continue safely.
While we must look to the government for guidance on whether vaccination becomes mandatory or stays a choice, business operations must be prioritised. Each organisation will need to analyse their daily operations, perform their risk assessment in each department to clearly determine the pros and cons of enforcing such a vaccine policy. This, in line with their duty to provide a safe working environment as well as to mitigate job losses in terms of the OHS Act.
Furthermore, the Employment Equity (EE) Act prevents discrimination and unfair treatment against employees on a number of listed grounds contained in Section 9 of the Constitution. This includes family responsibility and religion, while the inherent right to dignity is contained in Section 10, which includes the right to be respected and protected at all times. Moreover, Section 12 of the Constitution specifically states that everyone has the right to bodily and psychological integrity, which includes the right not to be subjected to medical procedures without informed consent.
On the other hand, the EE Act provides that medical testing by the employer is justifiable in the light of medical facts, employment conditions, social policy or the inherent requirements of the job and Section 23 of the Constitution grants everyone the right to fair labour practices. All of these rights and sections of the relevant acts must be weighed against each other. In light of the limitation’s clause contained in Section 36 of the Constitution, which states that rights may be limited by a law of general application that is “reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality”. Here, consensus from the courts in such cases is to look at the following factors, the first of which must examine the least restrictive means of achieving the desired outcome.
So, instead of enforcing a vaccine, it must be considered whether employees can practise physical distancing, and if employees have sanitising stations placed at strategic points in order to abide with Covid-19 protocols, or whether any other measures could be applied. Second, when considering refusal based on religious grounds, it must be determined whether such refusal is unreasonable.
Ultimately, there are multiple risks for businesses to actually enforce a mandatory vaccination policy, including the risk of an employee having an adverse reaction to the vaccine. Here, liability for the business would depend on whether the vaccination was mandatory, whether it was administered on the employer’s premises or off the premises, which could be a massive liability for the business under consideration.
To minimise risk and help organisations avoid such liability and to avoid employees embarking on protected strike action in terms of the Labour Relations Act, businesses should not approach this issue unassisted. TES providers have teams of labour experts, specialising in Industrial Relations (IR), human resources and legal issues. In these unprecedented times, TES providers aim to balance the interests of the employees, as well as that of the company, taking into consideration all legal rights of all the parties. By gaining a clear understanding of the business operations, TES providers are able to develop the most appropriate strategy for policies and procedures to be implemented. To mitigate any risks that may arise, TES providers will help to achieve a safe, productive workplace that protects both the well-being of employees while respecting their constitutional rights and ensuring BC.