Legal Articles

Towards the end of 2020 until the first few months of 2021, much has been written about the possibility of mandatory vaccination policies in the workplace and the probable dynamics around which those policies may work.

Most of the discussions have centred around options that employers have and what they can legally do in such a scenario. However, there has been less discussion about the legal position of the bulk of those that will largely be affected by these policies, being the employees themselves.

Now that the Department of Labour issued a Directive on 11 June 2021 with regards to mandatory vaccination policies in the workplace, it is crucial for employees to know what their legal position is in this situation.

This article will attempt to present a guide of general application to employees so as to outline what their legal position is in terms of mandatory vaccination in the workplace.

Workplace Vaccination Policy in South Africa & Mandatory Vaccines

On which grounds can I refuse vaccination as an employee?

An employee may withhold consent to take the vaccine based on Constitutional grounds relating to medical, religious, culture or belief. Section 12(2) of the Constitution provides that everyone has the right to bodily integrity and may not be subjected to medical experiments without their consent. Read in this context medical experiments include the administration of vaccines and any other medical examination.

Does South Africa have Legislation that gives effect to Mandatory Vaccination?

South Africa does not have legislation in place to regulate compulsory treatment, which covers vaccination. The Employment Equity Act in Section 7 provides for mandatory testing (as opposed to treatment) in the event that it is allowed by legislation or is relevant as part of inherent job requirements.

Can the rights in the Bill of Rights be ignored?

The Constitution is the supreme law of the land, and any conduct or law inconsistent with it is invalid to the extent of its inconsistency. Therefore, the rights in the Constitution cannot be ignored out rightly. However, Section 36 of the Constitution provides mechanism where rights may be limited under certain circumstances. This flows from the principle that no right is absolute, which is usually fertile ground for anarchy had it been the case. Therefore the rights under which an employee may refuse to take the vaccine may also be limited as they are part of the Bill of Rights in the Constitution. The application of Section 36 requires that such limitation be done in a way that is reasonable and justifiable in an open and democratic society based on freedom, human dignity and equality, having regard to;

The nature of the right;

Importance of the purpose of the limitation;

The nature and extent of the limitation;

Relation between limitation and purpose;

Less restrictive means to achieve the purpose.

In weighing reasonableness, the competing interests between exercise of the right and purposes of limiting the right in the least way possible are compared, as was held in the case of S v Makwanyane (1995) ZACC 3 where the Court held that a right must not be infringed wholesale especially if there is a way to limit the effects of such limitation.

Have the Courts ruled on Mandatory Treatment before?

In Minister of Safety and Security And Another v Gaqa (2002) ZAWCHC 9 and Minister of Health Western Cape v Goliath And Others 2009 (2) SA 248 (C) the Courts made judicial pronouncements that limited the right as enshrined in section 12 of the Constitution. It remains to be seen if the Courts will take the same approach should any matter come before them with regards to mandatory vaccinations.

In the event that the Employee withholds consent to take the vaccine, what are the options of the Employer?

The Directive encourages employers to refer the employee for counselling, trade union or their health and safety committee established in terms of the Occupational Health and Safety Act.

The employer derives an obligation to provide a safe working environment from the aforementioned legislation and therefore they must induce all interventions as are necessary to realise this fact.

Employers may also consider remote working for those who do not take the vaccine, increased social distance at work, use of better protective equipment or provision of alternative roles.

Can I be dismissed for refusing to take the vaccine?

While dismissal cannot be ruled out, it must be the last resort after all the interventions to accommodate the employee have been sufficiently exhausted.

Further, employers will need to tread carefully as some dismissals may be considered as constructive dismissal (where employer made continued employment of the employee untenable such that the employee had no choice but to resign). Employers will need to follow the legal procedure for incapacity in such event, but only in the circumstances where there is absolutely nothing that can be done to accommodate an employee who withholds consent to take the vaccine.

Van Deventer & Van Deventer Incorporated – Labour Law Attorneys South Africa

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