While the development and distribution of a Covid-19 vaccine is seen as key to ending the current pandemic, mandatory vaccinations should be treated with caution by employers, says Hugo Pienaar, a director at law firm Cliffe Dekker Hofmeyr.
Ultimately, employers should strive to obtain their employees’ voluntary buy-in when offering vaccines, Pienaar said.
“Accordingly, it is always the preferred option for the employer to engage in meaningful consultations with the employees and/or their representatives before embarking on any changes that will impact them.”
Pienaar provided a brief overview of the principles that an employer should consider before embarking on a compulsory vaccination project:
- The obligation to ensure that the workplace is a safe and healthy environment conducive to optimal productivity rests primarily on the employer. A mandatory vaccination policy could be helpful in ensuring such an environment.
- Employers should consider whether any instruction to undergo compulsory vaccination constitutes a reasonable instruction by the employer to its employees.
- It is also important to consider the relationship between the employees and the unwritten obligation that exists amongst themselves not to endanger one another’s health and safety.
- The policy may benefit the entire workforce, including applicants for positions. However, employers should not negate the fact that their employees have constitutionally and protected rights. These rights include freedom and security of person, bodily and psychological integrity and the right to enjoy religious and cultural freedom. Although no right is absolute, these rights may impact on the right of the employer to impose a compulsory vaccination policy.
- In addition, the employees may take issue to a possible unilateral change to the conditions of the terms and conditions of employment.
- It has become a known fact that many businesses currently face the fear of job losses and closures. The imposition of such a policy may act in mitigating the likelihood of such occurrences.
- The full scope of the right to privacy and the POPI Act should similarly be considered.
- Further, if an employee is adversely affected by the vaccination, the employer could be liable.
- In taking such action, the provisions of the Labour Relations Act may also be considered. For example, the utilisation of section 23 of the Act to conclude a Collective Agreement with a majority trade union/s in order to ensure the proper enforcement of such a policy.
- The policy may also have an effect on the workforce of the employers’ subcontractors – such employees’ access to the employers’ workplace may be impacted as well as the service level agreement with its subcontractors.