Can employers force employees to be vaccinated against COVID-19?

1. A decision taken by the employer

Covid-19 has brought about many challenges to not only all industries in the economy but also to the entire workforce. The crippling effect has resulted in the loss of lives and income for many. After months of research and debates by scientists all over the world, the vaccine may prove to be the solution to this worldwide problem. Administering the vaccine to a countries’ population may assist with flattening the curve, decreasing the death toll, preserving the full functioning of society, and most importantly preventing the spread of the virus. The vaccine may also provide a natural form of protection by building up immunity to save lives and to preserve livelihood.

On the 17th of February 2021 President Cyril Ramaphosa released a statement in which he announced the arrival of the first batch of 80 000 doses of the Johnson & Johnson vaccine that was prepared for distribution across South Africa with immediate effect at the time. The vaccine will be rolled out in phases to citizens based on a set criterion. The first phase of vaccinations has already been rolled out and the roll out of the vaccines are expected to be continuous for the rest of the year and most likely into 2022.

It is important to note that the Minister of Health Doctor Zweli Mkhize made mention of the fact that citizens are under no obligation to take the vaccine. With the long-awaited vaccines now made available employers have many questions surrounding whether it is permissible for them to require employees to take the vaccine to be able to return to work again on a normal schedule. It is inevitable that employees would want their employees to get vaccinated and this is encouraged by the fact that employers would like business to go back to normal. These questions involved are rather intense because the answers are not simple when considering that there are several constitutional rights and other legalities to be taken into consideration.

If a substantial percentage of employees are not willing to take the vaccine and many of those employees become ill, more pressure will be placed on business operations which will in turn affect the bottom line. Employers may be inclined to establish rules and draft policy documents that will force employees to be vaccinated as a condition of their employment, but this may result in a violation of employees’ rights.

These rights are rooted in section 12(2)(b) of SA’s Constitution which gives every person the right to “… security in and control over their body….” and section 15 which gives everyone the freedom of religion. If an employer forces employee to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution. Employers who wish to dispute this matter and wish to enforce vaccination as a requirement may use sections 11 and 24 of the Constitution as a counter argument. Section 11 grants everyone a right to life. Contracting COVID -19 may result in the loss of life of life of not only employees but also their family members because of its infectious nature.

Section 2 of the Constitution grants everyone the right to a safe working environment and employees who enter the workplace whilst having Covid-19 endangers the lives of others. The challenge therefore lies in the balance of rights: should the rights of those who have the right to say “no” to the vaccine take precedent or should those who enter the workplace have a right to be “protected” against their fellow employees? Enforcement of the administration of the COVID-19 vaccine is a relatively new subject and no court has therefore made a ruling in this regard. Employers should obtain legal advice before drafting policies or enforcing rules regarding the compulsory vaccination of employees. It is advisable that employers obtain permission from employees through a consultative process before changing their conditions of employment.

For more information on labour relations please contact Chamlabour. Marketing@chamlabour.co.za 010 040 8333