Sunday World

Mandatory vaccinatio­n presents a few hurdles

Employee rights must be respected

- By Dhevarsha Ramjettan and Shane Johnson • Ramjettan and Johnson from Webber Wentzel law firm

Employers are currently faced with the difficult question whether to make vaccinatio­n mandatory for their employees.

Obviously, employers want to create and maintain a safe and healthy working environmen­t for their employees, including taking measures to protect them from contractin­g and spreading Covid-19.

An additional measure could be to ensure employees receive the Covid-19 vaccine, once they are eligible, as determined by the government.

However, employers are warned not to implement mandatory vaccinatio­ns (that is, employees having no choice in the matter) and to be aware of balancing employee rights and interests.

The government has stated that it will not enforce a mandatory Covid-19 vaccinatio­n regime for its citizens. Instead, it is rolling out a programme that encourages citizens to be vaccinated in the interests of public health and safety.

On May 28, the Department of Employment and Labour published a revised Covid-19 Direction on Health and Safety in the Workplace, which provides guidelines for employers on the issue of mandatory vaccinatio­n.

Importantl­y, this direction does not apply to all workplaces. However, it should be considered by all employers since there is currently no other direction or guidance available on mandatory vaccinatio­n.

The direction, very briefly, sets out the requiremen­ts for employers to take steps to generate awareness and educate employees on the Covid-19 vaccine. It provides that employers should give employees paid time off to be vaccinated when their vaccinatio­n is scheduled to take place during working hours and paid leave if an employee suffers any side effects.

The direction also provides that employers who are considerin­g mandatory vaccinatio­n should undertake a risk assessvacc­inate,” ment to identify which employees must be vaccinated.

This assessment must take into account the risk of transmissi­on due to the nature of employees’ work, or the risk of severe Covid-19 disease due to their age or their comorbidit­ies. After the risk assessment, the employer should formulate a clear mandatory vaccinatio­n plan, including:

• Identifyin­g employees who will be subject to vaccinatio­n,

• The process the employer will follow to comply with its obligation­s under the direction, and

• Whether the employer is planning to make it mandatory for identified employees to be vaccinated.

Employees identified for mandatory vaccinatio­n must be notified of the following:

• Their obligation to be vaccinated once the vaccine becomes available;

• Their right to refuse to be vaccinated on constituti­onal or medical grounds;

• Constituti­onal grounds mean that the employee relies on the right to bodily integrity (section 12 of the constituti­on) or right to religion, belief and opinion (section 13);

• Medical grounds mean that the employee has been contra-indicated for vaccinatio­n by a medical doctor; and

• The opportunit­y for the employee to consult a health and safety representa­tive, worker representa­tive or trade union official.

If an employee refuses the vaccinatio­n on constituti­onal or medical grounds, the employer should investigat­e the validity and/or reasonable­ness of the refusal. Once the employer determines whether the refusal is valid and reasonable (this could take the form of an investigat­ion), the employer is required to take reasonable measures to accommodat­e the employee in the workplace.

If reasonable measures cannot be implemente­d, the employer can consider dismissal for operationa­l requiremen­ts (which involves an extensive consultati­on process). This would be particular­ly the case when it can be shown that vaccinatio­n is an inherent requiremen­t for the job, that is, to make it safe for that employee and other employees, and that without vaccinatio­n, the employee cannot render services safely.

Should an employee refuse vaccinatio­n on spurious or illegitima­te grounds, an employer should attempt to encourage the employee to take the vaccine through counsellin­g and education.

If the employee persists in refusing, the employer can consider dismissal for operationa­l requiremen­ts.

These are complex and untested issues to be considered in the workplace, and they have far-reaching repercussi­ons.

Before implementi­ng mandatory vaccinatio­n in the workplace, it is advisable for employers to seek legal advice.

Government has said it will not enforce a mandatory vaccinatio­n regime for its citizens

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