It has been well over a year now since the beginning of the COVID-19 pandemic. It has indeed been a difficult time for most South Africans: economically, emotionally and physically. However, the vaccine has presented some hope for many, but remains a contentious topic with many different views being expressed. This article will address the current legal position in respect of vaccinations in the workplace.

Currently, the vaccine is not mandatory to the general public. However, it is difficult to establish whether or not it can be made mandatory in the future just for the general public. The situation might be different in the workplace and a decision must be made in light of an employee’s constitutional rights and rights contained in employment legislation, such as the Occupational Health and Safety Act.

Section 12 of the Constitution sets out the right to freedom of security of a person and provides that every person has the right to bodily integrity. This means that every person has the right to make decisions about their health, as well as medical interventions and treatment. For example, a person has the right to choose whether to take the vaccine or not.

However, human rights contained in the Constitution can be limited if there are justifiable grounds for such a limitation. The Constitution also provides for certain factors that must be considered, such as the nature of the right that will be limited, the reason and importance of the limitation and whether there are less restrictive manners available to get to the same result.

Can employers make the vaccine mandatory?

Under the Occupational Health and Safety Act, employers have a duty to provide employees with a safe working environment. This goes further and employers also have a duty to reasonably ensure that third parties, such as customers, are not exposed to any hazards relating to their health or safety.

Based on these basic duties, the Department of Employment and Labour has released Directions on occupational health and safety measures in the workplace regarding the COVID-19 virus.

In terms of the Directions, employers will have to do a risk assessment to determine whether or not it will make the vaccination of employees mandatory. Their decision must be based on operational requirements, for example, to consider the impact the vaccinations will have on the operations of the employer.

After doing the risk assessment, the employer may decide to make vaccinations mandatory for all employees or only some employees. They must identify the employees for whom vaccination is mandatory after assessing the risk of transmission of the COVID-19 virus through their work or the risk of severe contraction of the COVID-19 virus due to their age or other comorbidities.

The Directions provided for a period of 21 days for employers to submit their decision on whether or not to make vaccinations mandatory. Seeing as this period has already passed, it is uncertain from the Directions whether an employer can still make that decision or not.

What if employees refuse to take the vaccine?

The Directions allow for an employer to make vaccinations mandatory in certain instances. However, the Directions do not provide any guidance on the issue of whether employees can be dismissed if they refuse to take the vaccine, despite the employer adopting a mandatory vaccination policy. It does give some guidance on how to deal with an employee in these instances.

If an employee refuses to go for the vaccine, the employer must enter into consultations and educate the employees based on the reasons for refusing. The employer can also refer the employee for further medical evaluation, for example, where the employee has a medical reason for not taking the vaccine.

The Directions also provide that if it is necessary, the employer must take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated. This can include adjustments to the job or working environment in order to allow the employee who refuses to be vaccinated to remain in employment, for example, to consider the following:

  • The possibility of remote working or to work in isolation at the workplace.
  • Adjustment of an employee’s duties.
  • Adjustment of an employee’s working hours or locations, or make other arrangements to ensure the health and safety of the employee.

The Directions do not give clarity on whether an employer can be dismissed for refusing to take the vaccine. However, it does appear that dismissal due to incapacity or operational requirements may only be as a last resort.

In light of the above, it can be argued that the right to bodily integrity may be limited in certain instances if it is reasonable and justifiable to do so, for example, if it is found that certain employees must be vaccinated to protect the health and safety of themselves and those around them.

Despite all the controversy and uncertainty surrounding the issue of employees who refuse to take the vaccine where the employer has adopted a mandatory vaccination policy, the directions are clear that employers must follow the correct procedure ensuring fairness when dealing with such employees. More certainty on this topic can be provided through updated legislation or court decisions in the future.