The 10 fundamentals for compulsory vaccinations in the workplace Quarter 1 2021

By EMPLOYMENT LAW TEAM, Published in COVID-19 Employment Law

The COVID-19 pandemic saw the world, as we know it, drastically altered. All of life's ordinary pleasures and comforts have had to be reimagined. However, not all hope is lost. A needle of hope has presented itself in the form of a vaccination. While this may appear to be the solution to the problems of many employers across the globe, a dose of caution must be taken.

The following is a brief overview of the principles that an employer should consider before embarking on a vaccination project.

  1. 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 this environment.
  2. However, the question must be asked whether any instruction to undergo compulsory vaccination constitutes a reasonable instruction by the employer to its employees.
  3. It is important to consider the relationship between the employees, and the unwritten obligation that that they share, not to endanger one another's health and safety.
  4. The policy may benefit the entire workforce, including applicants for positions. However, employers should not forget that their employees have constitutionally 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.
  5. In addition, the employees may take issue with a possible unilateral change to the conditions of the terms and conditions of their employment.
  6. It is a known fact that many businesses currently face job losses and closures. The imposition of such a policy may act in mitigating this likelihood.
  7. The full scope of the right to privacy and the POPI Act should similarly be considered.
  8. Further, if an employee is adversely affected by the vaccination, the employer could be held liable.
  9. In taking such action, the provisions of the Labour Relations Act may also be considered, for example, the use of s23 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.
  10. The policy may also have an effect on the workforce of the employers' sub-contractors, whose employees' access to the employers' workplace may be impacted, as might the service level agreement with its sub-contractors.

Employers should strive to obtain their employees voluntary buy-in. It is always the preferred option for any employer to engage in meaningful consultations with their employees and/or their representatives before embarking on any changes that will impact them.

Compiled by the Employment Law practice, Cliffe Dekker Hofmeyr.

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