By Kamogelo Nkoana, Candidate Attorney & Kimani Ndungu, Director, Ndungu Attorneys Incorporated

Introduction

South Africa has an extremely high rate of unemployment meaning that jobs come at a premium, and employees would do anything to retain them. This means that employees are under pressure to comply with employer policies which they may not necessarily agree with, or which may even be contrary to such strongly entrenched rights as the right to bodily and psychological integrity. Such is the dilemma facing employees and employers when it comes to mandatory vaccinations at the workplace.

It is not the case that all workplaces should have a mandatory vaccination policy. The question, rather, is, what should an employee do when their employer implements a mandatory vaccination policy? Should such employee refuse to be vaccinated on the ground that they have the right to bodily and psychological integrity (section 12 of the Constitution), or the right to freedom of religion, belief and opinion (section 15 of the Constitution)? And should such employee insist that they are entitled to work for the employer, at the employer’s workplace despite their refusal to be vaccinated? Recent decisions from the Commission for Conciliation, Mediation and Arbitration (CCMA) suggest otherwise.

What does the law say?

There is no law which prohibits the administration of vaccines on employees. However, the constitutional rights mentioned above give an employee the choice to object to any action of the employer that would violate their rights to bodily and psychological integrity, and belief and opinion, among others.

The above notwithstanding. employers are required by law to “provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health and safety of his [or her] employees.” (section 8(1) of the Occupational Health and Safety Act (85 of 1993) (OHS). Section 9 of the OHS imposes a similar general duty on employers to ensure, as far as is reasonably practicable, that persons, other than their employees (e.g. customers, suppliers and other persons entering the workplace), are not exposed to hazards to their health or safety. Furthermore, section 24 of the Constitution grants everyone the right to “an environment that is not harmful to their health or well-being.” The term “environment” needs to be understood broadly to include workplaces.

In a nut shell then, employees have the right to object to mandatory vaccinations on constitutional grounds but on the other hand, employers have a legal obligation to ensure that workplaces are safe and without risk, and that employees and other persons visiting workplaces are not exposed to hazards. At the same time, employees are entitled to refuse to work in circumstances where they would face serious risk of exposure to the corona virus. Balancing the rights and interests of employees, on the one hand, with the obligations imposed on employers, on the other, is the key question that needs to be resolved in the debate about mandatory vaccinations at the workplace.

Rights are not absolute

Constitutional rights are not absolute. Section 36 of the Constitution provides that the rights in the Bill of Rights may be limited in terms of law of general application providing such limitation is reasonable and justifiable in an open and democratic society taking into account all relevant factors, including

• The nature of the right;
• The importance of the purpose of the limitation;
• The nature and extent of the limitation;
• The relation between the limitation and its purpose; and
• Less restrictive means to achieve the purpose.

There has been a great deal of debate about whether government will introduce legislation requiring all persons to be vaccinated. While such legislation may or may not be adopted, and while if adopted, there is every likelihood that it will face a rigorous constitutional challenge, on 11 June 2021, the Department of Employment and Labour published the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces which for the first time introduced guidelines for employers should they decide to make vaccination mandatory. Annexure C to the Direction (Guidelines if an Employer makes Vaccination Mandatory) sets out the following framework:

• The guidelines are based on the principle of mutual respect between employers and employees;

• Every employee identified by the employer for vaccination should be notified of:

• The obligation to be vaccinated when the vaccine becomes available;
  • The right to refuse to be vaccinated on constitutional and medical grounds; and
  • The opportunity for that employee, at such employee’s request, to consult a health and safety representative or a worker representative or a trade union representative.

• Where the employee refuses to be vaccinated on constitutional or medical grounds, the employer is required to:

• Counsel the employee, and if requested, allow the employee to seek guidance from a health and safety representative, work representative or a trade union official;

• Refer the employee for further medical evaluation if there is a medical contraindication for vaccination; and

• If necessary, take steps to reasonably accommodate the employee in a position that does not require an employee to be vaccinated.

Employers need to bear in mind that no employee may be vaccinated against their will. Before implementing a mandatory workplace vaccination policy, the employer must first conduct a risk assessment and develop a plan for protective measures. The employer must also consult with the employees or their representatives, and as far as possible, provide adequate information to the employees so that can make informed choices on whether or not to be vaccinated.

Dismissal of an employee who refuses to be vaccinated

Until the CCMA decision in January 2022 in the case of Mulderij v Goldrush Group (GAJB 24054-21), there was no certainty as to whether an employee who refuses to take the Covid- 19 vaccine could be dismissed. The facts of this case were briefly as follows:

• The Applicant was a training officer in the employment of the Respondent.

• The Respondent introduced a mandatory vaccination policy at its workplace. The Applicant, however, refused to be vaccinated.

• Her refusal was based on a number of grounds including that she had a right to bodily integrity, that she was being forced to decide between earning a livelihood and acquiescing to something that she was opposed to, that and she had a right to have her decision respected.

In rejecting her arguments, the commissioner held that the mandatory vaccination policy introduced by the employer had been widely canvassed with the employees, the employee had put the employer at risk and exposed other colleagues to the risk of infection, and by refusing to be vaccinated, the employee had become “permanently incapacitated.” She had also refused “to participate in the creation of a safe working environment.” In the event, her dismissal was substantively fair.

Two months later, the CCMA once again found that an employer (a law firm) which had dismissed its employee (a candidate attorney) for refusing to take the Covid-19 vaccination had acted fairly. In this case, the employee said he refused to be vaccinated on the basis of certain beliefs, and that it was his constitutional right to refuse the vaccine. The employer on the other hand submitted that he had co-morbidities and was medically vulnerable even before the outbreak of the pandemic. He thus required all staff to be vaccinated. The employee could not be reasonably accommodated as the office was open-plan and he (employee) was

required to be at work. The CCMA held that the insistence by the employer that all employees be vaccinated was reasonable.

The jury is still out on whether an employer can impose a mandatory vaccination regime in the workplace. But going by the two matters already decided by the CCMA, it seems somewhat clear that dispute resolution bodies such as the CCMA and bargaining councils, or even the courts, are more likely to lean on the side of upholding a mandatory policy requiring all employees to be vaccinated, where such policy is fair and reasonable, and where there is no way in which an employee can reasonably be accommodated in a position that does not require the employee to be vaccinated.