South African law currently does not have legislation specifically requiring employees to be vaccinated against Covid-19. 

President Cyril Ramaphosa has emphasised that no one would be forced to take the drug, which is being rolled out in a government attempt to vaccinate 67% of the population (approximately 40 million people).

As a starting point, the Occupational Health and Safety Act, 1993 states that, “every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”. A similar provision is contained in the Mine Health and Safety Act, 1996. 

In addition, the National Health Act, 2003 stipulates that a health service, which would include the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat said person will result in a serious risk to public health.

The question then becomes whether an employer could, taking into account these statutes, implement a mandatory vaccination policy in the workplace. 

An employer’s obligation to provide a safe and healthy working environment, and employees’ constitutional rights to bodily integrity, religion, culture and the like, will need to be balanced in the assessment of whether there are justifiable grounds to limit the rights.

In light of the seriousness of the spread of Covid-19 and the risk it poses to public health, if employees are not vaccinated they pose a danger to other (vaccinated and unvaccinated) employees. Vaccination is not an absolute bar to contracting the virus – however, it is said to reduce one’s chances of infection.

The justifiability of the limitation of any constitutional rights will need to be considered on a case-by-case basis. However, conceivably, infringement of an employees’ rights may well be justified on grounds such as the employer’s operational requirements or health and safety considerations in certain circumstances. 

There could, for instance, be an entire workforce that works remotely and, as such, there is less chance of them contracting the virus than if they worked in a densely populated environment. 

In these circumstances, the limitation of an employee’s constitutional right to bodily integrity would likely not be justified on the basis of an employer’s health and safety obligations.

Aside from an employer’s health and safety obligations, could vaccination be an inherent requirement of the job in, for instance, the context of healthcare workers?

The labour court has held that for a requirement to be inherent it must be so intrinsic that, if not met, an applicant would simply not qualify for the post and that the indispensable attribute must be job-related. If the job can be performed without the requirement, then it cannot be said that the requirement is inherent.

In addition, and in the Supreme Court of Appeal in Department of Correctional Services and another v Police and Prisons Civil Rights Union and others, it was held that a policy is not justified if it restricts a practice of religious belief and, by necessary extension, a cultural belief, that does not affect an employee’s ability to perform his duties, or jeopardise the safety of the public or other employees, or cause undue hardship to the employer in a practical sense.

If an employee were not to be vaccinated, it has the potential to impact on the safety of the public as well as other employees. 

It could therefore be argued that there is a rational connection established between purported purpose of the limitation of their rights and the measure taken, being the implementation of a mandatory vaccination policy in the workplace. 

However, the link is quite tenuous when considering what an inherent requirement of the job is in terms of the labour court’s view. Could a healthcare worker conduct their work absent the vaccination? The answer is yes (provided they do not contract the virus). In this instance, it would unlikely be an inherent requirement of the job.

However, if an international air hostess were to be precluded from entering the countries on her flight route without having had the vaccination, this would inhibit her ability to perform her duties. In these circumstances, an argument that the vaccination is an inherent requirement of her job would likely be more successful.

Perhaps a justification could also be sought in the employer’s broader operational requirements.

The question becomes: if employees refuse to be vaccinated, what next? Can the employer discipline them? Can the employees claim discrimination? Is the employer obliged to accommodate those employees, and under what circumstances? DM

Lauren Salt is an executive in the employment department at law firm ENSAfrica. Jenna Batt is an associate in the department.