Legal Articles

With government intensifying efforts to have more people vaccinated against the Covid-19 virus as soon as possible, business has also considered resorting to programmes and policies aimed at vaccinating their own employees to ensure business continuity in a safe environment.

The recent meeting between business and the Labour Department at the NEDLAC platform had this purpose in pursuit.

Mandatory vs Enforceable

As one of the sticky issues central to this discussion, the matter of whether vaccination should be made compulsory and if an employee withholds their consent, can that employee be dismissed or not?

Further, if there are to be grounds for an employee’s refusal to take the vaccine, what are these acceptable grounds?

In answering these questions, we are of the view that it is important to draw a distinction between medical treatment and medical testing in as far as employment law is concerned.

Medical Testing

Medical testing is provided for in section 7 of the Employment Equity Act, 55 of 1998. Medical testing is whereby an employee is required to take a medical test so as to establish whether or not they have a medical condition. The point of departure is that generally, medical testing is prohibited unless the following applies:

1. Legislation requires or permits it,
2. As part of inherent job requirements,
3. Justifiable considering medical facts and employment conditions.

As an example, a job candidate to drive school children to their sporting activities may be required to undergo an Eye Test. Under the circumstances this medical test will be justified because keeping school children safe on the roads must be observed at all times, and therefore a good measure of assurance that the job candidate has good eyesight to decrease any chances of road accidents, is critical.

Medical Treatment

On the other hand, medical treatment is not provided for in our labour law, and it remains to be seen if the legislature will come up with legislative instruments pertaining to it since the dawn of the Covid-19 pandemic.

Medical treatment is whereby after establishing that a certain medical condition exists, treatment is administered to either curb or reduce the effects of that condition.

This includes vaccination.

Will I lose my job if I don’t get the Covid-19 Vaccine?

Therefore, in answering whether employers can force employees to take the vaccine, it must be remembered that medical treatment is not provided for in our law but at the same time, employers have a duty to provide a safe working environment for all its employees and may, require that employees take the vaccine on compulsory basis unless an employee objects or withholds consent on acceptable grounds.

Such grounds may relate to Constitutional rights to freedom of religion, belief, and opinion (section 15), dignity (section 10) belief or bodily integrity (section 12(2) for not taking the vaccine.

In such scenario therefore, an employer is then required to find alternative means of accommodating the employee without resorting to dismissal keeping in mind that medical treatment is not provided in our law and the employee does have rights in the Constitution to withhold their consent to medical treatment of any form.

Van Deventers and Van Deventers Inc. – Labour Law Specialists

However, in situations where the employer is without an option but to consider dismissal for an employee who refuses to take the vaccine, we strongly encourage employers to consult with us so that we can comprehensively assess all the legal considerations before dismissal can be executed as a last resort.

Our able labour attorneys stand ready to assist in all labour related matters amidst a wide array of matters in other areas of law. Our approach is comprehensive and professional.

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