When employees can refuse mandatory vaccination

By Hanno Labuschagne for MyBroadband 

Many South African employees who are not yet vaccinated against Covid-19 might soon have to get the jab or face being fired.

With the emergence of the Omicron strain in South Africa in recent weeks, renewed calls have been made for vaccine mandates to help prevent surges in hospitalisation and deaths.

That comes as the government is set to miss its target of vaccinating at least 28 million people by the end of the year.

As of 7 December 2021, 17.2 million South African adults had received at least one shot of a Covid-19 vaccine — just over 43% of the total adult population.

10.8 million more people would have to receive their first shot in the next 23 days to hit the government’s target.

Almost 470,000 new people would have to be vaccinated each day, including over weekends and public holidays.

Only two of the country’s provinces have passed a 50% vaccination rate — the Western Cape and the Free State.

While the government is still tiptoeing around the issue of mandatory vaccination for access to public amenities, businesses have increasingly stepped up to the plate in this area.

Discovery, Curro, and Sanlam were among the first companies to announce that their staff members would have to be vaccinated to work at their premises.

They have since been joined by Old Mutual, MTN, Standard Bank and Dis-Chem.

The latter will allow unvaccinated staff to continue working at its facilities, provided that they test negative through a rapid antigen test every Monday and wear an N95 respirator mask while on the job.

The employee will have to carry the costs of the mask and the test.

Generally, advocates of mandatory vaccinations state that businesses have a responsibility to protect the health of employees and customers. Opponents cite the individual’s constitutional right to bodily integrity and freedom of belief.

However, the momentum appears to be swinging in favour of the former “greater good” argument.

On Tuesday, labour minister Thulas Nxesi said that the National Economic Development and Labour Council (Nedlac) will approach the Constitutional Court in 2022 for a legal declarator on vaccine mandates.

The body has expressed support for businesses that only allow Covid-19 vaccinated people on their premises.

Labour lawyer Jacqui Reed recently spoke to eNCA about the approach employers needed to follow to implement mandatory vaccination and the options they were required to give to their staff.

She pointed out two main grounds for employees to refuse the vaccine — medical or constitutional.

“Medical grounds [would be if] you have a severe allergic reaction to the first dose of the vaccine or you have a known allergy to one of the components of the vaccine,” Reed said.

“The other ground upon which you can object is the constitutional ground, and that includes the right to bodily integrity, the right to religion, and the right to freedom of belief or opinion.”

However, Reed said that if your objection is made on the right of belief or opinion, it must be based on scientific fact.

For objections based on religion, employees will have to show that a basic tenet of their faith is that they are not allowed to vaccinate at all.

“I’m not aware of any religions where that is the case, but perhaps there are,” she stated.

Reed explained that, in most instances, the Occupational Health and Safety Act guided mandatory vaccination policies.

That requires businesses to first conduct a risk assessment that determines whether a mandatory vaccination policy is needed.

The assessment will consider factors like the office environment and spacing between workers, working setups, and employee health, with some staff who might have comorbidities that could make them more susceptible to Covid-19.

Reed emphasised that it was important for businesses to consult with stakeholders like employees, unions, and health and safety personnel during this process to avoid as much resistance as possible if a mandatory vaccination policy was the best way forward.

She added that current evidence suggested that mandating vaccines, rather than simply encouraging vaccination, was more effective in increasing uptake.

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