Mandatory Vaccination against Covid-19: Implications for the South African Workplace
“Vaccine Mandate”, Diverse Stock Photos, Creative Commons
Covid-19’s potentially devastating impact motivated unrivalled global efforts to develop vaccines, which the World Health Organization (WHO) identified as the most effective protection against the disease. Although largely viewed positively, there has been notable mistrust and hesitancy due to concerns about health-related risks associated with Covid-19 vaccines. This has raised questions in the employment context as some employers have quickly moved towards making vaccines mandatory.
Compulsory medical treatment in South Africa
Compulsory medical treatment, which encompasses mandatory vaccinations, is not specifically regulated in South African labour legislation. In contrast to compulsory medical testing, which is regulated by the Employment Equity Act 55 of 1998. Medical treatment is provided for in the National Health Act 61 of 2003, which states that “a health service may not be provided to a user without the user’s informed consent unless – failure to treat the user, or a group of people which includes the user, will result in a serious risk to public health”.
In the context of mandatory vaccinations, this speaks to the balancing of the rights of the collective against those of the individual. Accordingly, an individual’s failure to vaccinate against Covid-19 may be deemed a serious risk to public health and their right of refusal thus limited. This triggers a limitations clause analysis in terms of section 36 of South Africa’s Constitution.
The employer’s obligation to provide a safe working environment
Under the common law, employers have a duty to establish safe working conditions for their employees. This duty was reinforced in the Occupational Health and Safety Act 85 of 1993 (OHSA), under which the Minister of Labour and Employment issued the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction) addressing measures to be implemented by employers to curb the spread of Covid-19. Clause 3 requires employers undertake a risk assessment to determine whether they intend to mandate vaccination within 21 days from the OHS Direction’s commencement. Should the employer intend to mandate vaccination, its determination must identify those employees who must be vaccinated by virtue of their risk of transmission through their work or risk for severe Covid-19 disease or death due to their age or comorbidities.
The OHS Direction for employers who make vaccination mandatory states at the outset that departures may be justifiable in certain circumstances considering the size and nature of the workplace. Importantly, the Direction places a premium on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business. It states employees should be notified of the obligation to be vaccinated, the right to refuse vaccination on constitutional or medical grounds, and the opportunity to consult a health and safety representative, worker representative or trade union official. The Direction provides further details regarding employees who refuse to be vaccinated on these grounds, including that the employer should take steps to reasonably accommodate said employees.
Reasonable accommodation
The concept of “reasonable accommodation” predominantly finds application in the context of the employment of persons with disabilities. The Direction defines reasonable accommodation as “any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of Person with Disabilities”. Evidently, the Direction likens employees who refuse the Covid-19 vaccine to persons with disabilities in the workplace, triggering application of relevant provisions of the Code.
“Accordingly, an individual’s failure to vaccinate against Covid-19 may be deemed a serious risk to public health and their right of refusal thus limited.”
Reasonable accommodation would thus include measures that permit the employee to work offsite, at home, or in isolation within the workplace, such as an office or warehouse outside of ordinary working hours. However, the Code provides an exception if reasonable accommodation would impose an unjustifiable hardship on the employer’s business. Importantly, the Code states an accommodation that imposes an unjustifiable hardship for one employer may not necessarily be so for another. For example, reasonable accommodation may be challenging where the employee’s job involves substantial contact with others, such as restaurants and hospitals. In these circumstances, termination of the employment relationship may be justifiable.
Dismissals: Incapacity, misconduct, or operational requirements?
There are four forms of dismissal potentially implicated depending on the nature and wording of a particular vaccine mandate policy. First, where an employee cannot perform their role due to refusal to vaccinate, they may be considered incapacitated. Second, they may be dismissed for operational requirements as a “no fault” form of dismissal, as their refusal may be misaligned with the employer’s operational or similar needs relating to, for example, occupational health and safety. Third, refusal to vaccinate may amount to insubordination by the employee refusing to obey a lawful instruction. And lastly, an employee may believe the vaccination instruction renders the working environment intolerable and thus be subject to a constructive dismissal.
Human rights implications
Under the OHS Direction, employers must take into account employees’ constitutional rights to bodily integrity and freedom of religion, belief and opinion when determining how to handle mandatory vaccination. Broadly speaking, it is important to take a rights-based approach to mandatory vaccination, thereby necessitating a section 36 analysis at some stage of the enquiry. In 2020, the High Court grappled with balancing public health and the right to religious freedom in the Covid-19 context in the matter of Mohamed v The President of the Republic of South Africa.
The matter dealt with a group of Muslims who believed their right to religious freedom, amongst others, was violated by lockdown regulations because their religious practices necessitated they congregate in prayer, which the regulations expressly prohibited. The respondents argued the restrictions were necessary to curb the infection rate and prevent the healthcare system from being overwhelmed.
The court in denying the applicants’ petition held “every citizen is called upon to make sacrifices to their fundamental rights entrenched in the Constitution … in the name of the ‘greater good’, the spirit of ‘ubuntu’ and … to do so in ways that impact on their livelihoods their way of life and their economic security and freedom”. While this judgment demonstrates how a court may consider the balancing of rights in relation to Covid-19, it differs significantly from the mandatory vaccination context. Particularly because section 36 requires the state and employers consider whether there are less restrictive means to achieve the intended purpose.
In One South Africa Movement, the applicants sought an order preventing re-opening schools which they argued would compromise public health objectives. The court held that “while the initial concern and response to the virus was largely and understandably a public health one, with time the impact of the virus on issues such as the economic survival of nations and their citizens, and the simple ability to live a meaningful and decent life, has come sharply into focus”. The court further took that view that it is possible to protect both lives and livelihoods without preferring one over the other in adopting less restrictive public health measure. This judgment is more applicable to our current Covid-19 reality, wherein less restrictive overall lockdown measures makes it critical the state and employers become more creative in approaching the balancing of rights.
A blanket approach in a workplace is unreasonable when the state itself has adopted a relatively flexible approach and recommended employers do the same in an effort to balance the interests of workers and public health objectives.
