Is the introduction of mandatory workplace vaccinations constitutional?

"The question as to the constitutionality of mandatory vaccinations has not been determined and can only be finally determined by the Constitutional Court", says Jaco Swart, National Manager at the National Employers’ Association of South Africa (NEASA). I tend to agree.

As I have alluded to in previous articles, employers are required to conduct a risk assessment prior to determining whether or not a mandatory vaccination policy is required in the workplace. To this end, employers are required to identify employees who, by virtue of their risk of transmission, or due to them having co-morbidities, should be vaccinated. The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces never envisaged a panacea or a one size fits all approach in respect of vaccinations.

It, therefore, follows that only certain employees employed in only certain workplaces should be required to be vaccinated. The foregoing is premised upon a site-specific risk assessment in respect of the workplace, the working conditions at the workplace, and the health and wellness profile of each and every employee. The one-size-fits-all approach contemplated by certain employers is patently not the optimal approach to this complex, contentious and controversial subject.

It is an accepted fact that no employee may be forced to vaccinate. The critical question remains, however, as to whether an employee who objects to being vaccinated should or indeed could be dismissed. I have dealt with this particular issue extensively in my recent articles. The ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ makes it clear that an employer must consider reasonable (alternative) accommodation for any employee who objects on medical or constitutional grounds in order to keep such an employee employed.

Reasonable accommodation would include, inter alia, social distancing, the wearing of N95 masks, working from home, redeployment to another section/department, etc. Such measures would not cause unjustifiable hardship for the employer. Unjustifiable hardship can be defined as actions that would require significant or considerable difficulty and/or expense on the part of the employer.

If, after conducting a comprehensive risk assessment following a due procedural process by exploring all reasonable alternative accommodation options, and after establishing that such alternatives/options are not feasible/possible, the employer feels compelled to dismiss the employee, the following options are required to be considered:

• dismissal due to incapacity

• dismissal based on operational requirements

• dismissal due to misconduct

As I have stated previously, it is my considered view that none of these options is applicable when contemplating the dismissal of an employee for refusing to be vaccinated. This, notwithstanding two recent CCMA rulings, the first of which upheld the employer’s decision to dismiss an employee for refusing to get vaccinated on the grounds of incapacity, and the second where the CCMA ruled that the employer had acted fairly when suspending one of its employees for refusing to be vaccinated. My understanding is that both matters have been referred to the Labour Court for review. It is anticipated that the decisions in regard to both matters will be set aside by the Labour Court.

It is common cause that the CCMA is not a court of law and thus awards/rulings made by the CCMA do not constitute a legal precedent. It is precisely for this reason that employers should not be emboldened by recent CCMA rulings when contemplating the dismissal and/or suspension of employees.

We continue to remain in a corridor of uncertainty from a constitutionality (and legal) standpoint regarding the complex issue of mandatory vaccinations. Not until Government spells out, in definitive terms, it's thinking around the implementation of mandatory vaccinations at the workplace, and not until we have decisions by employers dismissing employees for refusing to be vaccinated tested at the Constitutional Court, will we have legal and constitutional clarity on this seemingly paradoxical and dichotomous issue.

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