Earlier this month, New Zealand announced a ‘no jab, no job’ policy for most healthcare workers and teachers to prevent the spread of the COVID-19 virus. Doctors, nurses, and other frontline health workers must be double-jabbed by 1 December while any person working in the education sector and who has contact with students must have their two doses by 1 January.
This is despite an employment advocate telling the New Zealand High Court that the mandatory vaccination order was unlawful. The advocate, Ashleigh Fechney, had been granted leave to appear in court on behalf of her client, a customs worker who was dismissed from her job for refusing to get vaccinated. However, the court dismissed her arguments that the vaccination order was too wide and did not allow challenges to which roles were safe as well as that the normal checks and balances did not occur before a right protected under the Bill of Rights Act (the right to refuse medical treatment).
Meanwhile, in South Africa, more companies and even universities are moving to introduce mandatory vaccinations for employees and students who want to return to the office and campus. Many people are questioning the legality of this with even trade unions like Cosatu adding their voices to the debate.
The Occupational Health and Safety Act of 1993 lays the basis for health and safety in any workplace. According to the Act, employers have an obligation to take reasonable measures to ensure that the working environment is safe and without risk to the health of its employees. The employer’s obligation to take reasonable measures is also extended to non−employees who may be affected by its activities, for example, employees interacting with members of the public.
But when it comes to implementing mandatory vaccinations, things are not all that clear cut. A new ‘Consolidated Direction on Occupational Health and Safety Measure in Certain Workplaces’ was gazetted earlier this year.
According to the Directions, employers who intend to introduce mandatory vaccinations must do two things. Firstly, the company must undertake a risk assessment and identify employees who work in situations where the risk of transmission is high due to the nature of employees’ work; and the risk for severe COVID−19 disease or death is high due to an employee’s age or comorbidities.
Secondly, the employer must develop or amend its existing COVID−19 vaccination plan to include measures spelt out in the Guidelines for mandatory vaccination (Annexure C). The content of the plan must take account of the size and nature of the business, as well as any collective agreement (if applicable).
Right to refusal?
Complicating this is the fact that employers who intended to make vaccination mandatory had until 2 July (21 days after the amended Direction came into force on 11 June) to undertake a risk assessment and to identify employees that would be vaccinated.
Why the need for a deadline or what the consequences are for failing to meet the deadline are still to be seen. But if we were to assume that the employee has complied with the Direction, what can the company do if an employee refuses to be vaccinated?
The most controversial issue in relation to mandatory vaccination appears to be the extent to which employees may rely on their constitutional rights not to be vaccinated, particularly the freedom of religion, belief, or opinion. But what people are not aware of is that constitutional rights are not absolute.
In some cases, these rights clearly need to yield to the rights of others. To appropriate a quote ‘the needs of the many outweigh the needs of the few.’
However, dismissal for refusal to be vaccinated must always be a last resort. The employer can investigate alternatives. Annexure C of the Direction provides suggestions that include working off-site; working from home; working in isolation (at the office), and so on. But in some sectors, for example, teachers, doctors, miners, etc none of these measures are viable. To this end, the employer may consider excluding the employee from the workplace on a ‘no work, no pay basis until such time as it is safe enough for the employee to return to work, for example, the government’s target of herd immunity is achieved.
All of this comes down to the employer having to undertake a thorough risk assessment before implementing a mandatory vaccination policy. The services of employees who refuse to be vaccinated may be terminated in certain circumstances, but not before the employer has attempted to reasonably accommodate such employees.
The 1 January deadline which some companies are setting for employees to be fully vaccinated is looming. The legal and social issues that will arise from what will happen after that will be watched closely both locally and abroad with many countries facing the same concerns and challenges.