By Ivan Israelstam, chief executive of Labour Law Management Consulting
During 2021 Covid will continue to pose a major threat to those businesses that have managed to survive so far.
The only light at the end of the long, dark tunnel is the vaccine and, when it is actually made available, business managers will want to ensure that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in very tight economic circumstances and will be operating on a very lean staff compliment. Businesses will not be able to afford to lose skills due to employees being off work on sick leave or isolation leave. In addition, the business’ clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.
However, the enforcement of policies requiring all employees to be vaccinated will be very problematic. This is largely because section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” Thus, forcing an employee on pain of discipline to be vaccinated could be argued to be a violation of the Constitution.
However, employers that are determined to enforce compulsory vaccination will counter this argument by quoting sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As Covid is a deadly and contagious disease, the right to life of those people who have to come in contact with a vaccine objector would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe.
Section 36 of the Constitution provides that, under certain circumstances, the constitutional rights of people may be limited taking into account factors such as the nature of the right and the importance of the purpose of the limitation.
In addition, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over ones body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.
The challenge is to be able to convince a court that, under the circumstances, the rights of the individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such a the provision of a safe workplace.
In the end, where an employer considers forcing employees to take the vaccine, it will first need expert advice as to whether the specific circumstances that prevail would justify such a drastic step. In order to consider taking such a step there would at least need to be a very clear and present danger of severe consequences to the workplace community of employees not being vaccinated.
For legal and employee relations reasons, it would be much more prudent for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails and where it is viable, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced, and also enforcing the normal safety restrictions we have come to know so well.
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