South Africa

OP-ED

Jab for the Job: Can an employer legally require its employees to be vaccinated? (Part Two)

Factory workers receive their Covid-19 vaccinations in Cape Town on 20 August. (Photo: Gallo Images / Brenton Geach)

In Part One of this series we addressed whether the government is constitutionally able to require everyone, not just workers, to be vaccinated against the Covid-19 virus. We spelt out the serious consequences for public health and the efficacy of vaccines in counteracting the virus. This part deals with whether employers can require their employees to be vaccinated and what the consequences are, not only for employees, but also for employers.

 

Halton Cheadle is Professor Emeritus at the University of Cape Town and a practising attorney at BCHC Attorneys.

Glenda Gray is president & CEO of the South African Medical Research Council (SAMRC) and is on the Board of Directors for the Global Antibiotic R&D Partnership (GARDP)

Read Part One here

Can an employer legally require its employees to be vaccinated? And can an employer refuse to permit an employee to enter the premises if unvaccinated? And, if it does, can it refuse to pay the employee on the grounds of the “no work no pay” rule? And can an employer eventually dismiss an employee who refuses to be vaccinated?

No! say the libertarians — it is a violation of human rights. No! the Human Rights Commission is saying (though it should know better) — it is a violation of the constitutional rights to bodily integrity and religious beliefs!

In order to properly understand the answer to these questions and the glib answers of libertarians and the misguided Human Rights Commission, it is necessary, first, to determine if there are any laws that allow or require employers to set these conditions and, second, to understand that human and constitutional rights are not absolute — under our Constitution they may be limited by laws if those laws are reasonable and justifiable.

But, before we do so, let us ask ourselves what the overwhelming concern of the trade union movement ought to be. This is not a criticism of the labour movement (though we do have our reservations) but the debate concerning mandatory vaccinations should be conducted, as we argue in the first of this three-part series of articles, shorn of its constitutional red herrings.

The issues at stake are primarily about public health and the economy. Trade unions, in our view, should be forcefully pressing for mandatory vaccination either in the economy as a whole or in the workplace so that workers are protected from serious if not fatal illness and either holding on to or getting jobs in an already depressed economy. We say, unequivocally, vaccination is the primary way (together with other ways) to protect the health of workers and their jobs.

So, what law permits an employer to require its employees to be vaccinated? Section 8(1) of the Occupational Health and Safety Act requires every employer to take reasonable measures to ensure the health and safety of its employees in the workplace. Do not forget that, like the prohibition on the employment of child labour, this legislative duty was a hard-fought battle by trade unions and political parties worldwide to impose this obligation legislatively on employers. It is the workers’ right to a safe and healthy workplace and, without doubt, the constitutional right to fair labour practices under our Constitution. Section 8(1) is not just a permission, it is a duty — and a duty the failure of which carries a criminal sanction.

But the act does not stop there. It goes on to require every employer whose workers interface with the public (such as a supermarket or a post office) to take reasonable measures to ensure that interface does not endanger the health and safety of the members of the public.

But what is a reasonable measure? There are two questions to be asked: is it a reasonable measure and does it apply to all of an employer’s employees? As to the first question, we have more than demonstrated in Part One of this series of articles that vaccination is not just reasonable, but a compelling measure. But if you do not believe our arguments, can there be any dispute given the government’s national programme of vaccination to counter the pandemic that courts are going to hold that vaccination is not one of the primary measures for combating the pandemic?

Yes, the duty in the act is not specific — all it says is that it must be reasonable. What can constitute a reasonable measure is either determined by science or by subordinate legislation. We have given the scientific basis for why it is a reasonable measure. The latest Occupational Health and Safety Direction published by the Minister of Employment and Labour under the National Disaster Act Regulations provides the legislative basis. Although the direction leaves it up to the employer to make the decision, it clearly considers compulsory vaccination of employees not working at home or in a protected environment as a reasonable measure if it consults, counsels and seeks to accommodate employees who refuse.

So, the legal basis for an employer to require those of its employees who must work in the workplace and who interact with members of the public to be vaccinated is sections 8 and 9 of the act read with the direction.

While there is no doubt that the requirement to be vaccinated infringes on a worker’s constitutional right to bodily integrity in section 12(2) of the Constitution and to religious beliefs in section 15(1) of the Constitution, the issue to be addressed is whether that infringement is reasonable and justified in the circumstances because, under our Constitution, no right is absolute. The purpose of the act and direction is to protect the individual workers, their fellow workers, and members of the public with whom they may come into contact in the workplace.

The Covid-19 virus is an infectious disease that is easily transmittable, often leading to serious illness if not fatality. There is clear scientific evidence that measures such as social distancing, the wearing of masks and vaccination both reduce the transmissibility of the virus in the workplace and the seriousness of the disease if infected. All three of these measures constitute a reasonable and justifiable limitation of the rights to bodily integrity and religion. Accordingly, a properly executed requirement to be vaccinated in accordance with the direction is not a violation of the two constitutional rights.

It is useful at this stage of our argument to summarise what the direction, namely a risk assessment and plan, after consultation with worker representatives, requires employers to do:

  • Identify employees who because of the physical proximity with other workers in the workplace are required to be vaccinated;
  • Provide information to employees on the dangers of the virus and the efficacy of vaccines generally and in particular the Covid-19 vaccines — information provided online by the Department of Health, links of which are posted in the direction;
  • Assist employees to register on the Electronic Vaccine Data System Registration Portal for Covid-19 and to give employees time off to be vaccinated;
  • Notify every employee identified for vaccination of the right to refuse to be vaccinated on constitutional or medical grounds and the opportunity to consult with a health and safety representative;
  • Offer transport to and from the vaccination site;
  • If the employee refuses to be vaccinated,
    • Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative;
    • Refer the employee for further medical examination should there be a medical contra-indication for vaccination;
    • If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated. Reasonable accommodation in these circumstances means any modification or adjustment of the job or working environment that will enable an employee who refuses to vaccinate to remain in employment such as working offsite or at home or in isolation within a workplace or in instances of limited contact with other workers in which the wearing of masks and social distancing is sufficient.

Although the direction does not address the consequences of a refusal by an employee to be vaccinated, it may be important for employers to include this in their plan. Both the common law and the Labour Relations Act provide the answers, both of which are constitutionally defensible.

An employer may, as part of its health and safety obligations, establish health and safety rules including rules such as those required by the direction, such as not permitting an employee to enter the workplace without a mask or if presenting symptoms associated with Covid-19. If those rules, based on the risk assessment that the OHS Act and the direction requires, forbid the entry of employees at risk to themselves and others, the employer may refuse an employee’s tender to work without the common law contractual obligation to pay the worker, namely the commonly understood rule of “no work no pay”.

It is no different from refusing an employee entry to the workplace because the employee is drunk or has or is suspected of having chickenpox, meningitis, measles, influenza or hepatitis or its obverse that the employee refuses to be vaccinated against these diseases if a risk arises either within the workplace or in the immediate community.

If the employer has established such a rule in its plan or given an instruction to that effect, it may refuse to accept the employee’s tender of services and allow the employee to work without being held liable for the employee’s wages for doing so yet another illustration of the “no work no pay” principle.

The claim has been made that this exclusion from the workplace contravenes section 6 of the Employment Equity Act, 1998 which prohibits unfair discrimination on various grounds, in particular the ground of belief. Although there is a difference in treatment between those who are vaccinated and those who are not, the question is whether the exclusion from the workplace constitutes unfair discrimination on grounds of belief.

But this discrimination is not unfair because, as section 11 of the act states, all that the employer must prove is that the reason for the discrimination is rational, not unfair and otherwise justifiable. The purpose of the exclusion is a reasonable measure under section 8(1) of the Occupational Health and Safety Act to ensure a healthy and safe workplace.

Two purposes underlie such a measure: to protect workers from serious disease, particularly if there is a breakthrough infection among vaccinated workers in the workplace; and to reduce the transmissibility of the disease. These purposes are no different from the requirement under the Occupational Health and Safety Direction that an employer may not allow employees to enter its workplace if they present with Covid-19 symptoms or have had contact with a person infected with Covid-19. The measure is manifestly rational, fair and operationally justifiable.

Now, assuming that an employer has followed the direction to both letter and spirit and refused to accept an unvaccinated employee’s tender of services and waited for reason (or a trade union intervention) to prevail, can the employer then dismiss that employee? This requires us to engage with the Labour Relations Act which only permits dismissal for a fair reason related to an employee’s conduct or capacity or the employer’s operational requirements.

Let us consider whether a refusal to be vaccinated in these circumstances (the employer following the direction in letter and spirit) constitutes a fair reason related to conduct. As much as we would recommend employers to approach this differently, the Occupational Health and Safety Act indicates that a dismissal on grounds of misconduct may be justified: first, because section 14(c) of the act states that every employee must “obey the health and safety rules and procedures laid down by the employer … in the interests of health and safety”; second, because section 38(1) (a) of the act makes it a criminal offence for an employee not to comply with those rules.

Accordingly, if the employee is informed of the rule and its consequences for not complying, an employer may be able to rely on these provisions to defend a claim for unfair dismissal on grounds of refusing to obey a lawful order or rule and accordingly a failure to pay notice and severance pay. But in the light of the constitutionally charged nature of any litigation arising from a dismissal of an employee for refusing to be vaccinated, the two other fair reasons for dismissal ought to be considered by employers.

If an employee legitimately (rather than opportunistically) raises a medical condition or one of the constitutional grounds for refusing to be vaccinated, the employee will have demonstrated an incapacity to work in the employer’s workplace and accordingly, provided again that the procedures outlined in the direction have been followed, an employer may fairly dismiss such an employee, but only if, and when, the employee needs to be replaced for operational reasons.

Although this is not the place to advise an employer whether or when it should make such a decision, an employer should always be aware of the constitutional sensitivities involved and that its actions are always subject to judicial scrutiny.

It follows that if an employer needs to dismiss an employee in these circumstances, taking into account not only the OHS Act and the direction, its decision should not constitute an unfair dismissal whether under the LRA or the Constitution.

Let us now deal with the call by the Human Rights Commission for employees who have been dismissed for refusing to be vaccinated to come forward and lodge complaints as if the dismissals are self-evidently unconstitutional.

It beggars belief that, given what we have set out above, that the Human Rights Commission, which ought to know better, should enter the fray. Not only is there a sound constitutional basis for implementing measures to secure a safe and healthy workplace in the face of a devastating health and economic pandemic, but there is also a human rights justification — the health rights of other workers in the workplace. DM

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