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Workplace vaccination policies: Juggling science, legal liabilities, constitutional rights, personal choice and greater good

Workplace vaccination policies: Juggling science, legal liabilities, constitutional rights, personal choice and greater good
People wait for their Covid-19 vaccine inside the Discovery mass vaccination site at the Cape Town International Convention Centre in Cape Town, South Africa, on Tuesday, 7 September. (Photo: Dwayne Senior / Bloomberg via Getty Images)

Employees and employers will have to find some common ground for mandatory workplace vaccination to be better understood and accepted, not resented.

Mandatory workplace vaccination policies look set to be the imminent norm. Getting policies implemented with more buy-in and less coercion though may boil down to understanding what lies at the heart of vaccine hesitancy.

Conflict resolution consultant Andre Vlok says there should be recognition from employers that a decision to vaccinate is also a question about identity and personal values. It opens up a space for different conversations and can frame policy that is more widely accepted. 

“If I argue facts with you in a value-based conflict, then ironically, and quite counterintuitively, I make it worse.

“Prudent employers are not saying they are pro-vaccination, but are saying they are pro-science and pro-evidence and that their vaccination policy is about managing the consequences of employees’ decisions if employees choose not to accept what the science is saying about vaccinations working,” Vlok says.

A layered mandatory vaccination policy, he says, is one that keeps the door open for emerging science and new findings to be incorporated into policy as it’s tweaked in a fast-changing Covid-19 landscape. “Policies right now are still absolute works in progress but they have to be in place as strategic business planning – not unlike a company having a social media policy or a workplace anti-harassment policy.”

He adds though that policies should also be unequivocal in what they are setting out to achieve. “This is not about being nice; it’s not a kumbaya moment of everyone sitting around a fire; it is about looking at potential legal liability and commercial implications, and marrying this with good ol’ fashioned conflict resolution.”

Possible solutions right now for employees who choose not to be vaccinated are options to work from home where appropriate; for them to undergo, at their own expense, regular Covid-19 testing to prove they don’t pose a danger to colleagues and others in their workplaces; or creating designated work areas for unvaccinated staff members. 

At the beginning of the month, medical aid giant Discovery became the first public company in South Africa to announce mandatory vaccination for staff by January 2022. Since then several other companies and institutions have moved in the same direction. 

An uptick is expected as companies phase in return to the workplace strategies. This as 16 million people in South Africa have been vaccinated and accessibility to vaccination continues to improve. 

Dr Ron Whelan, head of Discovery’s Covid-19 task team and chief commercial officer, said in early September that even as the company started the ball rolling in South Africa, a mandatory vaccination policy in their company could not have come soon enough.

“Covid-19 is an unprecedented human tragedy when we consider that in the past 18 months we have had 240,000 more excess deaths than we did before the Covid years, when we had around 600,000 excess deaths in that period,” he said.

Whelan said the company’s vaccination policy fulfils requirements in the Occupational Health and Safety Act to protect employees from biological hazards – the Coronavirus – but is also a “social and moral obligation” to its 11,000 staff members across the continent. 

According to Whelan, the overwhelming number of employees “showed a lot of support and there was a massive sense of relief”. A small fraction, he said, needed more information about the vaccine; including dispelling misinformation and myths and there was a “smattering of objections on religious grounds”. 

Financial services company Sanlam Investments is another large corporate that has announced that by January 2022 all its South African employees, around 20,100 people, are required to be vaccinated to return to the workplace.

The company calls their vaccination policy an “obligation in law to provide our employees with a work environment that does not pose risks to their health and safety. We also have an obligation to ensure that our employees do not harm third parties like our clients through their interactions,” according to communications manager Allim Milazi.

Milazi said that “exceptional cases with valid grounds (such as medical reasons)” would be considered. 

“The policy will recognise the right of those employees to object to being vaccinated, and a process to manage these exceptions will be put in place as we navigate its implementation over the next few months,” she said. 

It must take into account the constitutional rights of their employees to bodily integrity and the right to freedom of religion, belief and opinion. Another relevant right is that everyone is entitled to an environment that is not harmful to their health or wellbeing.

Universities that are employers, education service providers and institutions with high public engagement are also moving fast to shape up policy in time for the 2022 academic year (expected to have a delayed start once again next year).

At the beginning of September, the South African Committee of Medical Deans and the South African Committee of Dental Deans recommended compulsory Covid-19 vaccination for health students and all healthcare workers

They also recommended that all healthcare workers who received a single dose of the Johnson & Johnson vaccine receive a booster shot. 

The University of Cape Town and the University of Witwatersrand have indicated that they intend implementing mandatory vaccination policies for staff and students that will come into effect by January 2022.

The decisions are currently being debated at Senate level at both universities. As expected, there remains outcry about an infringement of the constitutional rights of individuals and vaccination policy unfairly disadvantaging those who choose not to vaccinate. 

Objections have already been voiced by trade union Solidarity’s youth league. Solidarity Youth said in a statement that it “would not hesitate to take action on behalf of its members against any university that wants to make Covid-19 vaccination mandatory for students”.

Paul Maritz, Solidarity Youth’s manager, said in a statement: “Solidarity Youth supports incentives that will motivate students to be vaccinated, but regulations that restrict people’s rights can in no way be supported.”

Professor Ames Dhai of Wits University’s Steve Biko Centre for Bioethics and vice-chair of the Ministerial Advisory Committee for Covid-19 vaccines published on the SAcoronavirus portal in September her outline on what is at stake in balancing rights in the workplace. Dhai writes that employers are compelled to undertake risk assessments to determine if mandatory workplace vaccination in accordance with sections 8 and 9 of the Occupational Health and Safety Act is a necessity. 

“It must take into account the constitutional rights of their employees to bodily integrity and the right to freedom of religion, belief and opinion. Another relevant right is that everyone is entitled to an environment that is not harmful to their health or wellbeing.

“Most rights in the Constitution may be limited, provided the limitation is of general application, and is ‘reasonable and justifiable’. It could be argued that backed by scientific evidence and the rights of all people to a safe environment, it would be ‘reasonable and justifiable’ to compel workers in certain workplaces to take a vaccine that is available and approved for use by the SA Health Products Regulatory Authority.”

The South African Human Rights Commission (SAHRC) has also urged employers to improve programmes to combat vaccine hesitancy and to provide support for better information and access to vaccination before implementing mandatory workplace vaccination policies. 

Chairperson of the SAHRC Advocate Bongani Majola stresses that a person’s decision to be vaccinated should be voluntary. He added that they do expect challenges to arise in coming months from employees who feel they have been unfairly expected to vaccinate or face losing their jobs or work opportunities. Majola said the SAHRC would in defending these challenges be guided by upholding the constitutional protection of rights. DM/MC


"Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c) it is prohibited to publish information through any medium with the intention to deceive people on government measures to address COVID-19. We are therefore disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information that you think we should know, please email [email protected]"

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