The state of Mandatory Vaccinations in the Workplace in South Africa

Overview

Dismissal of employee who refused to get vaccinated was fair, rules CCMA

South Africa, like many other nations, has been embroiled in debates about mandatory vaccinations in the workplace, with proponents and opponents of the rule voicing their opinions. The Occupational Health and Safety Act of South Africa, which mandates that both workers and employers are responsible for a safe and healthy workplace, is being considered by several groups in the country in terms of urging for an established OHSA mandatory vaccination policy.

The CCMA and Covid Vaccination Policy

After an employee refused to get vaccinated, had their employment suspended by their employer, the matter was referred to South Africa's Commission for Conciliation, Mediation, and Arbitration (CCMA), which ruled the suspension to be reasonable.

The CCMA made it clear that if an employee refuses to participate in a procedure that would guarantee a safe working environment, employers have the necessary support to take the necessary measures to ensure the health, safety, and wellbeing of other employees and the public.

However, the Commission for Gender Equality (CGE) has duly warned employers about the dangers of enforcing vaccination at work policies that violate workers' constitutional rights in the workplace, especially as this ruling by the CCMA may have been the start of many to come, as more businesses turn towards mandatory vaccination policies.

Immediately after the CCMA's first ruling, Ndaka Security and Services, involved with offering security services to several entities in South Africa, including Sasol Limited, provided a Safety Practitioner employed by the company an ultimatum, which resulted in the CCMA's second verdict.

A Covid-19 vaccination was required for the individual to continue their work, or they would be subject to weekly Covid-19 tests, for which the individual would be liable.

An investigation of the employer's handling of the employee's allegation of unfair dismissal was conducted by the CCMA. To provide a healthy and safe working environment for all workers, the employer conducted various Occupational Health and Safety Risk Assessments between 2020 and 2021.

This specific risk assessment procedure identified high-risk personnel and the best way to protect employees and customers from Covid-19 was to vaccinate them. Considering several legal principles and other components, including the Disaster Management Act, the CCMA weighed a variety of considerations, including the important nature of the employer's service and the fact that workers are on the front lines.

The CCMA determined that the employee's suspension was appropriate. Furthermore, the CCMA reaffirmed its support for South African companies who are taking the required steps to guarantee the health and safety of their workers and the general population.

The impact of implementing vaccination mandates

Recent studies have shown that there are some vaccine side effects on the duration of an individual’s menstrual cycle, a topic that has been questioned by the Commission (CGE). However, this is a temporary and hence clinically inconsequential side effect that is modest.

The Commission has urged businesses in South Africa to avoid threatening their workers with severe repercussions if they refuse to be vaccinated, particularly when it comes to terminating employment because of the refusal to be vaccinated against Covid-19.

Commission for Gender Equality (CGE) is concerned about the substantial number of retail workers, many of whom are unable to bargain with their employers if they do not feel comfortable with having the vaccination due to its negative effects on the menstrual cycle duration.

Many people may refuse to get vaccinated if scientists prove that the Covid-19 vaccinations harm reproductive health, such as menstrual cycles. Employers that are considering implementing the vaccination requirement should keep this in mind.

Current Vaccine Legislation considerations

At birth, vaccines are a requirement to avoid a broad variety of life-threatening infectious illnesses that might result in significant death rates among infants as well as young children. Before Covid-19 Parents were not required to give their children these vaccines, although they are strongly encouraged to do so to combat high mortality rates.

When Covid-19 reached a pandemic status, the issue of whether the Covid vaccination policy and the OHSA Mandatory Vaccination Policy should be implemented, became critical, forming part of many discussions in South Africa.

Unfortunately, it also became the subject of controversy in terms of Constitutional rights versus Occupational Health and Safety requirements in the workplace.

The Covid-19 immunization is not presently required in the workplace, however other vaccinations, like the yellow fever vaccine, are required for international travel. Businesses across the country are employing the vaccine mandate to protect employees and the public who may enter the premises, forming part of not only good practice but a responsibility to ensure a healthy and safe working environment.

Health and Safety requirements and some considerations for employers

It is a legal requirement for employers to make every effort to provide a safe and healthy working environment. Employers have the right to retaliate against workers who violate the company's commitment to providing a healthy and safe working environment for everybody.

There are, however, several concerns to keep in mind while enforcing a requirement for mandatory workplace Covid-19 vaccinations.

Legal protection for employees' constitutional rights

Many essential constitutional rights, such as Section 12's guarantee of personal protection and Section 15's guarantee of religious, belief, and opinion freedoms may be violated if employees are required to get vaccinated.

Restrictions on these rights are permitted, but they must be reasonable and enforceable. In this context, it is also worth considering:

There are a few factors that must be taken into consideration when limiting a person's rights, including:

• The nature of the right
• The relevance and purpose of the limitation
• The type and degree of the restriction
• The link between the limitation and its aim
• Less restrictive means of reaching the same aim

It is possible that Section 11, the right to life, together with the right to a workplace free of harm to health and well-being (Section 24), may be utilized by employers to justify the workplace vaccine requirement.

The Covid-19 immunization policy at work may be referred to the Constitutional Court because of the interplay between basic rights. This decision will need a delicate balancing act between the company's obligations to its workers and the rights of its employees.

Additionally, employers must keep in mind various employment-related legislations, including:

Section 187(1)(f) of the Labour Relations Act (66 of 1995) deals with automatic unjust dismissals based on the reason of discrimination, which includes religion, conscience, and belief.

Sections 5 and 6 of the Employment Equity Act 55 of 1995 both provide comparable protection.

Putting a vaccine mandate into practice and the associated expenses

Covid-19 vaccines are presently solely available to the South African government for distribution. There will be no immunization programs at work because of this, for now. Vaccination as a condition of employment is not yet a possibility.

The cost involved with implementing this mandate may produce more challenges, especially if an employer requires employees to get vaccinated before returning to work, because this means that the employer will be liable for the costs of procuring and administering immunizations.

Employers should be mindful of a few other additional factors when demanding vaccinations of their employees, including but not limited to the following:

• Agreement with employees on modifications to employment terms and conditions
• Vaccination status and historical data that is provided by employees must managed according to strict privacy policies.
• Issues with maintaining a company's image, particularly when major organizations, such as healthcare providers, are at risk of public criticism for failing to implement the required covid vaccination policy.

Covid-19 vaccination strategies in the workplace must take a broad variety of legal considerations and their repercussions into account. Diverse rights and interests must be delicately considered. Subsequently, employers who are contemplating instituting a forced vaccination program should consult with legal advice to see whether it is permissible.

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