Vaccines and employment: Can employers insist on their employees being vaccinated?

Talking Points

By Marleen Potgieter

Who would have predicted that something as seemingly innocuous as a simple vaccine could become so contentious and create such polarisation? The surprise comes from the fact that we are all vaccinated, more than once and have mostly had our children vaccinated, also more than once. I cannot ever recall anyone discussing these vaccines, what is in them, that they either draw substances from us or inject unwanted sinister substances into us, such as foreign DNA, 5G capabilities or lethal substances that will lurk in our system and kill us all in two years (or five years, depending on which conspiracy theory is currently circulating). What has made this vaccine such a talking point?

Firstly, the prevalence of social media has enhanced the wide dissemination of any theory, conspiracy or otherwise. Not only the wide dissemination but also the way in which algorithms work, has amplified the prolific circulation of questionable information. The fact that algorithms feed us the very information which supports our bias, allows us to imagine that the weight of information supporting our bias outweighs the other. Secondly, the noise around misinformation always vibrates at a higher frequency than the truth. The truth is simply not as sexy. Also, misinformation and conspiracy sound much more interesting and are much like gossip, repeated without any interrogation as to the veracity of the content.

Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Direction)

Our Department of Employment and Labour, instead of taking a firm stance on making vaccines mandatory in the workplace, has divested itself of the responsibility and passed it on to the employer. In publishing its Consolidated Direction of 11 June 2021, the department is essentially saying that ‘should you wish to make the vaccine mandatory, Mr or Ms Employer, you can, and here is how you do it’. But before you implement, remember there are three opposing interests you must weigh up: (1.) That we are in a pandemic and public health and safety is paramount, as the Covid protocols published under the Disaster Management Act 57 of 2002 have continually stressed; (2.) The individual’s constitutional rights must be weighed up and considered; and (3.) The employer’s operational requirements are important and must also be taken into account.

Analyse the environment and formulate a policy

To implement a mandatory policy, the employer should do a risk analysis of their environment, assess the necessity of their employees returning to work and which areas of the business would require employees to work in such a way that health and safety would be enhanced by all employees having been vaccinated. A policy is important and would provide the standard guiding the employment relationship. This should include a policy stance on the vaccines, the policy of the company to return to work to the same level as pre-Lockdown days, and the guidelines on health and safety adopted by the employer in line with the requirements of both ss 8 and 9 of the Occupational Health and Safety Act 85 of 1993. These sections require each employer to create as healthy an environment as possible, to devolve equal responsibility onto the shoulders of employees to maintain such a safe environment (self-management and disclosure are shown to be two of the key principles around sound Covid-19 management in the workplace) and to implement protocols and rules around maintaining such a healthy and safe environment. Not adhering to these sections, attracts criminal liability for key decision-makers of the employer. This policy should follow the operational requirements of the organisation, this always being the most objectively defensible pillar on which to base any rules and standards.

Process of introducing mandatory vaccines

As has been shown by many labour lawyers in various publications, not least of which the pithily named article by Professors Halton Cheadle and Glenda Gray, ‘Jabs for the Job’, published in the Daily Maverick on 22 August 2021, making vaccines mandatory in the workplace is constitutionally defensible. Limiting the constitutional rights of employees, in this case, would be a justifiable limitation in line with s 36 of our Constitution. This is because individual rights of employees are not absolute and, in a pandemic, where the public health and safety obligations are so important, not to speak of the economic impact Covid has had on organisations, making vaccines mandatory is a justifiable requirement even though this might infringe on the constitutional sensibilities of some employees.

The constitutional rights most often cited by those who are anti the Covid vaccine are: the rights to bodily integrity, freedom of choice, religion, belief, and opinion. None of these rights trump the employer’s greater requirement of creating a healthy and safe environment and the public health needs. When balanced on the scale, the latter rights quickly outweigh the individual’s rights. Some employees fear that their medical condition prevents them from being safely vaccinated. Extensive research and testing have shown that there are very few medical conditions precluding anyone from taking the vaccine; even immune-compromised individuals have been advised that the benefits of the vaccine far exceed the downside of contracting Covid. The most compelling argument to become vaccinated must be that the opportunistic nature of the virus is that it finds unvaccinated hosts in which to mutate and to spread more transmissible and increasingly dangerous variants of the virus.

Consultation and employee rights

No policy may unilaterally be introduced in the workplace: in all policy changes, which inevitably entail changes to conditions of employment, consultation is key. However, consultation is not negotiation. An introduction of the concept, consulting all staff, especially dissenters, allowing some time to lapse between the introduction of the concept of mandatory vaccines and the ultimate implementation of the policy, is the suggested approach by the Direction.

Employees must be given access to their health and safety representatives (most employers have introduced a Covid task force from the ranks of the health and safety committees) and to their trade unions around this topic. Concerns should be addressed and the best way to introduce the topic is to train, educate and provide information, preferably by medical practitioners in the know. In many instances, the medical aids are very helpful in providing the required information. Practice has shown that much of the ‘anti-vaccine’ sentiment is nothing more than vaccine hesitancy borne out of fear. Covid-19 has brought one of the most fear-inducing situations the world has known. Loved ones have died, Lockdown created mental health issues, isolation and illness have brought many to the brink of disaster and hopelessness. The vaccine is closely linked to all these fears. Unfortunately, much of the money needed to address some of these fears and hesitancy was looted by some unscrupulous supposed leaders. Like so much else in this country, it is now on the shoulders of businesses and organisations to take us out of this mess. In my experience, good information goes a long way to address most of the fears around the vaccine.

Part of the risk analysis would be to assess the lie of the land with the employees. Who is vaccinated? Which vaccine did you take? Have you registered? Can we help you register? Can we take you to the vaccine sites, during the day, when they are open? Do you have fears? What are your specific fears? And so on.

The Direction requires employers to facilitate the taking of the vaccine, like assistance with registration, transport to and from the vaccine sites and time off for side effects. Many employers have applied to provide vaccines on-site, which has escalated the uptake of vaccinated employees. Creating some positive PR around those who take the vaccines, with the aid of WhatsApp groups, photos on notice boards of those getting the vaccine etc, also helps. Leaders taking leadership on this subject has been helpful. Harvard Business Review published an article on mandatory vaccines, taking the stance that it is up to leaders in organisations to take leadership on this matter. Not doing so, creates the impression that there is something wrong with the vaccine. We know that the vaccine now has full approval by the FDA, and this can no longer provide the stumbling block used by some vaccine-hesitant employees.

The global trend has been to introduce mandatory vaccines in workplaces — President Biden of the USA made vaccines mandatory for all employers with more than 100 employees, and all health and federal workers must be vaccinated. We trust that our government, now that the election is over, will also support a stance that is in favour of public health and safety and will take some tough decisions soon. We would all like to return to a society where social distancing is no longer necessary, where we can work together shoulder to shoulder, where we can attend social events we so desperately need and where life returns to a semblance of normal. It is not fair to devolve this responsibility solely onto organisations and employers, but this is where it rests now.


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