2020 was a year of terror at workplaces because of the physical and financial dangers posed by Covid19. Due to the fact that the roll out of the vaccine will be slow we can expect 2021 to be as terrifying as was 2020, if not even more so.

This is because Covid is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy is still weakening very seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does inspire confidence that it will be able to rescue the economy. And, to make matters even worse,  money for state aid of businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far.

The only light at the end of the long, dark tunnel is the vaccine, but its expected slow roll out dulls that light very significantly. As a result, when the long awaited vaccine is actually made available, business managers will want to ensure that it is administered optimally. Included in that is the need to ensure that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in very tight economic circumstances and will be operating on a very lean staff compliment.

Should, say 10% of the staff refuse the vaccine and several of those get ill, that will increase the pressure on management and will make it more difficult to run the company effectively due to high numbers of employees being off work on sick leave or isolation leave.

In addition, the business’ clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.

For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. This is largely because section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Thus, forcing an employee on pain of discipline to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution.

However, employers that are determined to enforce compulsory vaccination will counter this argument by quoting sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As Covid has been a very prolific taker of lives those people who have to come in contact with the objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act very stringently obligates employers to ensure a safe workplace. 

Due to these potentially conflicting constitutional provisions the question of whether employees can be forced to be vaccinated is highly contentious, with the bulk of advice on this issue tending towards the cautious approach.

Employers should be aware of section 36 of the Constitution which 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. 

In addition, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over ones body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.

Clearly,  the challenge is to be able to convince a court that, under the circumstances, the rights of the individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such a the provision of a safe workplace. Due to the fact that the enforcement of the taking of the Covid vaccine is such a new issue there are as yet no court findings that can provide a precedent. 

In the end, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step. In order to consider taking such a step there would at least need to be a very clear and present danger of severe consequences to the workplace community of employees not being vaccinated.

For legal and employee relations reasons, it would be much more prudent for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails and where it is viable, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced, and also enforcing the normal safety restrictions we have come to know so well. 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to:www.labourlawadvice.co.za

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