The matter of enforcing mandatory COVID-19 vaccinations in the workplace and institutional environments like universities and schools continues to be one of both great importance and concern locally and abroad.
Many nations have adopted or explored mandatory vaccination policies for public and private environments with mixed results. Some have adopted a blanket approach, while others have sought to vaccinate only high-risk sectors like public health workers. Some nations have openly welcomed such legislation, while others have a large contingent of reluctant citizens and groups of staunch anti-vaxxers to contend with.
South Africa remains equally divided. One reads about organisations who have had an overwhelming positive response to mandatory vaccination policies. Like Discovery, for example, who is approaching a 100% vaccination rate amongst employees with low levels of resistance. Then one also reads about unions like Solidarity and UASA challenging the various universities who are attempting to implement mandatory vaccination polices.
For employers the lack of clarity on the matter is as much a concern as a frustration. So, what can be done?
Current legislation that must be observed
In spite of assurances from President Cyril Ramaphosa that forced vaccinations will not be introduced in South Africa, we must consider four key legislative areas which impact the potential implementation of mandatory vaccination policies:
The Constitution of the Republic of South Africa
In this particular instance, our Constitution is relevant it the way it governs the integrity of any human being in relation to their rights in the workplace, their rights to medical care, and their rights to bodily integrity. Of course, any directive or policy which ignores, contradicts, or undermines those rights is essentially an illegal practice. Mandatory vaccinations appear to be in conflict with the Constitution in the broader context.
The National State of Disaster Act
The National State of Disaster Act has been in place for some time. It was called into force during the first hard lock down on 26 March 2020 and has remained in place ever since, moving between various alert levels over the past two years. The expectation is that this will be finally lifted entirely on 15 April 2022, barring the advent of some new variant of Covid which introduces an elevated level of risk once again.
The Occupational Health and Safety Act
The Occupational Health and Safety Act is the direct instrument which governs the rights of workers to a secure and sound operating environment without health risks. Covid-19 clearly represents a medical risk, especially since people with asymptomatic infections are no longer required to self-isolate and may well return to work while infected. With the easing of restrictions, more and more employees are returning to the workplace can only increase those risks.
The Code of Practice (Gazette 46043)
The Code of Good Practise has been specifically gazetted ahead of the lifting of restrictions on 15th April 2022 and deals with how to manage potential exposure to Covid-19 in the workplace, to limit or mitigate such dangers. This now places the expectation on employers to know the vaccination status of their individual staff members, who are mandated to disclose or prove their status upon request. Previously unvaccinated employees were able to refuse to disclose their status.
Furthermore, no statement now exists whereby an employee can refuse to be vaccinated but employers must somehow take steps to reasonably accommodate that refusal, on any number of grounds which have not been fully articulated, aside from instances where said employee can produce a medical certificate indicating that they suffer from contra-indications. Which means that employees are effectively able to object for any reason they believe to be justifiable.
Current application of the legislation in practice
With such open-ended and apparently contradictory legislation, it’s not surprising that there are many cases now before both the Court and the CCMA. For employers it is worth noting that current outcomes are almost entirely not in favour of the persons who are objecting to mandatory vaccinations.
Theresa Mulderij vs Goldrush Group
- Applicant made an argument for constitutional human right to bodily integrity in terms of possible side-effects, while continuing to practice all Covid-19 protocols implemented by the employer.
- Arbitrator concluded the applicant was permanently incapacitated in refusing Covid-19 vaccination. Commissioner ruled dismissal of the applicant was substantively fair.
Gideon J Kock vs Ndaka Security and Services
- Applicant refused to be vaccinated against Covid-19 and was offered the alternative of submitting weekly negative COVID test results which was declined.
- Arbitrator concluded the employer had not committed an unfair labour practice. Commissioner ruled that the suspension of the applicant was not unfair.
Dale Dreyden vs Duncan Korabie Attorneys
- Applicant made an argument for constitutional human right to bodily integrity as well as on religious grounds, after a director of the law firm who suffered co-morbidities with a long record of serious illness introduced a policy where all personnel had to be vaccinated.
- Arbitrator concluded the applicant had not provided clear reasons at the time of dismissal and that the employer had his own right to bodily integrity, thereby being unable to reasonably accommodate the applicant. Commissioner however did find that while the dismissal was substantively fair, the applicant was entitled to one month’s compensation and four weeks’ notice pay on basis in which the dismissal was handled.
CCMA awards however, do not necessarily create a precedent, and are subject to review by higher courts, especially when determinations revolve around constitutional rights. They can only be decided by the Constitutional Court itself and we wait with bated breath for the definitive guidance those outcomes will bring.
In the interim, employers should still be wary of simply implementing a mandatory vaccination policy.
What is the best response for employers at this time?
The principal considerations for employers lie in their obligation to ensure the welfare of their employees, providing a reasonably practicable safe and healthy work environment.
Nevertheless, the onus also lies with employees in ensuring they partner with their employer to achieve and maintain that reasonably practicable state. In real-world application the responsibility falls to both employer and employee in daily practice. And, at a time like this, is something which should probably be discussed openly as a reminder to both parties.
The employer must ensure that procedurally the workplace still maintains COVID-19 protocols, while employees respect those rules and the spirit in which they are founded. This means being receptive to additional safety measures, like vaccinations (which should be encouraged with proper education), and reporting of COVID-19 infections to management, even if they are asymptomatic.
What does the future hold for mandatory vaccinations?
Foreseeably, on the 15 April 2022, South Africa revert to a position of almost pre-pandemic regulations. But a clear and definitive set of regulations around mandatory vaccinations and the ongoing management of Covid-19 will still take time for the courts to resolve entirely.
If the consensus is that workplaces and institutions will only be safe if everybody is vaccinated, then mandatory vaccinations may ultimately have a place in our society. However, if COVID-19 continues to become less of a threat and fear, then it will likely mean every person individually is afforded the right decide.
That being said, the Constitution can and should take precedence over any other rule or act and certainly over the court of popular opinion. Whatever additional COVID-19 interventions may be introduced; it must be universally understood by all that they have to defer to the Constitution from inception. In this way we can most surely move forward together.
For any expert assistance with COVID-19 related policies, protocols and procedures, please contact Elise Coetser, General Secretary of the (SA)UEO on email@example.com