Compulsory Vaccination in the Workplace
The topic of compulsory vaccination in the workplace remains a highly controversial one. It is for this reason that it is quite important to view the different legislations applicable thereto. It is of the upmost importance that both parties, the employee and employer, comprehend the legal implications of such a policy. The implementation of such a policy would indisputably involve the balancing of both the interests of the employer and the rights of the employee.
The Constitution of the Republic of South is the starting point for the legal implications of mandatory vaccinations. Section 12 guarantees the right to freedom to security of a person and this includes but is not limited to the right to bodily integrity. Read in context with the mandatory vaccination policy, this provision enables the employee the right to make decisions regarding any medical intervention. However, it must be borne in mind that rights provided within the Constitution are not absolute and can be limited if based on justifiable grounds. Both the nature of the right limited as well as the reason for such limitation will be considered in making the determination.
The Occupational Health and Safety Act is of significant importance due to the fact that it provides for the safety and health of employees. As a result , section 8 (1) of the places a duty on the employer to provide a healthy and safe working environment to employees.
With this provision as the backdrop, the Minister of the Employment and Labour released the Consolidated Direction on Health and Safety in Certain Workplaces. It provides the employer with a comprehensive guideline for the establishment of mandatory vaccination policy. For instance, it must conduct a risk assessment and timeously notify the employees of its intention to carry out such a mandate. However the Directive only applies to those employers who fall within the scope of the Occupational Health and Safety Act.
The Employment Equity Act states that no one may be discriminated against on the basis of their religious believes. Therefore, it provides a measure to those employees who are objecting to the vaccination on the ground of their religious believes. The employer should guard against implementing the policy without notifying the employees as this could result in an unfair labour dispute.
An interesting read is the recent CCMA case (Theresa Mulderij v Goldrush Group) in which it held that the dismissal of an employee on the ground of refusal to vaccinate fair. The Commission held that the dismissal was fair as the employee had refused to participate in the creation of a safe and healthy working environment.
The future most certainly looks interesting as this matter has opened the doorway for similar matters. It is therefore important that both the employees as well as their employer understand their rights and obligations in terms of the applicable legislation. A balancing of both the rights of the employer and employees would need to take place prior to implementing such a policy.
Onalenna Lephoro – Candidate Attorney
VanderMerwe and Robertson Attorneys