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THE COVID-19 VACCINATION IS HERE: BUT CAN YOUR EMPLOYER FORCE YOU TO BE VACCINATED PRIOR TO RETURNING TO THE WORKPLACE?

Oct 5, 2020

“The vaccine” and the way in which it will be rolled out in South Africa has been a hot topic as we settle into 2021. It has given rise to the question of whether employers may force prospective or current employees to be vaccinated prior to returning to the workplace. South Africa has just peaked in its “second wave” of Covid-19 infections and workplace policies are therefore very relevant.

The Government’s view on the Covid-19 vaccine roll-out plan is to encourage vaccination, but current legislation does not make Covid-19 vaccination mandatory.

Against this background, should employers implement a policy requiring employees to be vaccinated, it would violate section 12 of the Constitution, which guarantees everyone’s right to bodily integrity. Furthermore, in terms of the National Health Act, 2003 medical treatment (which includes vaccination) may not be given to a user without the user’s consent.

This must also be viewed in the context of the Labour Relations Act and the Employment Equity Act, which prohibits employers from prejudicing an employee (or person seeking employment) for refusing to do something that the employer is not lawfully entitled to require them to do.

Thus, as a general principle, employees who refuse to be vaccinated may not be dismissed and, where such employees are unable to work remotely, should be allowed to return to the workplace subject to existing safe working practices, symptom monitoring and health protocols.

There may, however, be circumstances in which compulsory vaccination would be permissible, for example where not having a vaccination may create a serious risk to public health. Public health risks may also be triggered in workplaces where large numbers of people are served or may be impacted, such as retail operations, hospitals and food manufacturing operations.

An employer is required in terms of the Occupational Health and Safety Act, 1993 to provide and maintain a safe working environment; both for its employees, clients/customers and suppliers, and have the right to prevent persons who have Covid-19 symptoms from entering its premises.

In conclusion, employers will have to balance the safety of their employees, clients, customers and suppliers with the rights of persons to bodily integrity and the right to consent to medical treatment. For now, employers will have to encourage vaccination and continue to practice health protocols to prevent the spread of Covid-19, rather than make vaccination mandatory.

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