While much has been said about the rights of people to refuse being vaccinated for Covid-19, it is also important to remember the other side of the coin: people who will not feel comfortable working with people who have not been vaccinated.
Employers will have to decide what to do, but what will be the best course of action?
Education and awareness
According to the experts, the best option will be to start an education and awareness programme immediately, to enable employees to make a decision based on sound, scientific information when the time comes.
“Employers should create an environment where people can be educated about the vaccine and encouraged to be vaccinated.
“You will not have to compel people in a healthy working environment, but employers also have to accommodate people with co-morbidities who will die if they contract Covid-19,” says health lawyer Safura Abdool Karim.
Health and religious reasons
Karim points out that there are also people who cannot be vaccinated due to health reasons, as well as people whose religious beliefs forbid them to be vaccinated.
It all depends on whether people’s individual rights outweigh the interests of the community.
Karim cites the example of Muslims who took government to court when mosques were closed during the lockdown.
The court found that people’s right to pray was not taken away, but that they could just not pray in a mosque, which was closed to protect the community.
Rights of individuals vs. the rights of the group
Employers will have to weigh up the rights of individuals and the group.
While an employer must respect individual rights, they must also protect the rights of people who cannot be vaccinated by encouraging the rest of the group to be vaccinated.
“While there is currently a lack of clarity on how to respond to the question of whether employees should be required to be vaccinated, I do not think the answer is to penalise those who do decline the vaccination.
“We need to look at the problem and find ways to solve it. Communication will play a large role, because this is a societal issue,” Karim says.
Employers have to decide
Talita Laubscher, an expert in employment law at Bowmans, says it is a fair question to ask what employers should do when vaccinated employees request not to work with unvaccinated employees.
“Employers will have to see if other measures, such as wearing masks and social distancing can help. Every workplace will be different and employers will have to make decisions based on their unique workplaces.
“They should also consider aspect such as whether sufficient other employees are vaccinated to create herd immunity in the workplace.”
Only medical treatment with informed consent
Vaccinations are regarded as medical treatment, but South Africa’s employment legislation does not explicitly make provision for circumstances when an employer can require employees to have any medical treatment.
According to Laubscher, medical testing on the other hand is governed by section 7 of the Employment Equity Act, and includes a test or inquiry to establish if an employee has a medical condition.
“The starting point for considering the circumstances in which medical treatment may be administered is the Constitutional right to bodily integrity that includes the right to security in and control over your body.
“The National Health Act gives effect to this right and makes it clear that a health service, including medical treatment, cannot be provided without your informed, specific and voluntary consent,” Laubscher explained.
Certain exceptions apply, such as where a law or court order authorises the provision of a health service or when failure to treat an individual or group will result in ‘a serious risk to public health’.
So far, Health Minister Zweli Mkhize has indicated that the Covid-19 vaccine will not be compulsory, and there is accordingly no law currently requiring people to be vaccinated.
Safe working environment
On the other hand, the Occupational Health and Safety Act requires employers to provide and maintain a safe working environment for employees and visitors, which is why employers are required to prevent people with Covid-19 symptoms from entering its premises.
However, the employers’ duty is to provide and maintain a safe working environment, and they are only required to do what is ‘reasonably practicable’.
Employers must therefore assess and consider factors such as the severity and scope of the hazard or risk identified.
When it comes to the risk of contracting Covid-19 in the workplace, the employers’ actions will largely be based on the nature of the workplace and the nature of the work, as well as the availability and suitability of means to remove or mitigate the hazard or risk.
Laubscher says the duties of employers will have to be balanced against employees’ right to freedom of conscience, religion and belief, unless the means to accommodate result in unjustifiable harm to the employer.
Principles regarding mandatory vaccination
According to Laubscher, employers should keep these principles in mind:
- Forcing employees to have the vaccine undermines the voluntary nature of consent, but this will depend on the possible consequences if they are not vaccinated.
- A mandatory vaccination policy will be permissible if not having the vaccine may create a serious risk to public health, especially where large groups of employees work together in places such as call centres, mines and factories ,or where large numbers of people are served or may be impacted, such as retail operations, hospitals and food manufacturing operations.
- Less intrusive measures should be used where there is not a serious risk to public health, such as physical distancing, mask wearing and working remotely.
- Employees’ vaccination status constitute health information and is protected by the Protection of Personal Information Act and can only be processed with the employees’ consent or if it is necessary to establish, exercise or defend a right or obligation in law.
“Employers must also remember to consult their employees when a vaccination policy is drawn up, because it is a change of conditions of employment,” says Michael Opperman from Omni Labour Law Consultants.