The lawfulness of Vaccination Policies at the Workplace

It’s been a long time coming but we finally have some clarity as to whether the introduction of a mandatory vaccination policy at the workplace is lawful or not. This follows the recent Labour Court judgment handed down on Monday of last week (14 March 2022).

Significantly, the court upheld the company’s vaccination policy requiring its employees to be vaccinated or to provide a weekly Covid-19 negative test and ruled that the introduction of a vaccination policy was not in itself a breach of any existing contract of employment.

The company in question sent letters to its employees in December 2021 advising them that they would be implementing a Covid-19 vaccination policy, such policy coming into effect from January 2022.

The company advised its employees that it did not intend to force any employee to be vaccinated, nor would it demand any of its employees to have to disclose their vaccination status. The policy did state, however, that in the event of an employee refusing to be vaccinated, the employee would be required to provide a negative Covid-19 test every week should they require access to the company’s premises.

The employee in question informed the company that she was not willing to get vaccinated. She said that she would be willing to provide a weekly test to show she did not have Covid-19, with the proviso the company paid for the tests. Understandably, the company refused to accede to the employee’s request.

The employer informed the employee that she would not be allowed onto the company’s premises should she fail to comply with the rules of the policy to the extent of providing the requisite negative test every week or proof that she had in fact been vaccinated.

Significantly, the company notified the employee that she would not be paid for the time she was not allowed on the premises and invoked the universally accepted ‘no-work-no-pay’ principle. The employee was further advised that appropriate disciplinary remedies would be taken by the employer should the impasse between the parties persist.

The employee then approached her trade union who wrote a letter to the company. In it, the union averred, inter alia, that requiring her to be vaccinated, or her having to provide a negative Covid-19 test every week was not only unlawful, it was also in breach of her employment contract.

The latter assertion was premised upon the fact that the employee’s employment contract did not (specifically) state that it was a requirement that she be vaccinated, neither did it state that she would be required to provide the company with a weekly negative Covid-19 test. The thrust of the Union’s argument, seemingly, was to challenge the company on the basis that it had, when implementing the Covid-19 policy, breached the employee’s contract of employment.

The company’s lawyers argued that the company had a duty in terms of the Occupational Health and Safety Act to take all reasonable steps to provide a safe and healthy working environment for its employees.

It also had a burden of responsibility to protect its customers and suppliers who came onto its premises. They argued that the company would be negatively impacted should customers decide not to enter the company’s premises as a result of the company’s employees not being vaccinated.

The company’s lawyers argued that the vaccination policy was necessary to ensure the company could properly operate and conduct its business. It would also serve to ensure that the company met its obligations in ensuring a safe and healthy environment, not only in respect of its employees but also in respect of its customers and suppliers.

The Union’s lawyers argued that the employer’s vaccination policy was unlawful because it violated the employee’s employment contract.

This was because there was no clause in her contract which required her to be vaccinated or stipulated that she had to provide weekly negative tests to her employer. This, according to the Union’s lawyers, meant that the company had unilaterally changed the employee’s terms and conditions of employment by imposing a mandatory vaccination policy.

The lawyers also argued that the company had failed to comply with the Occupational Health and Safety Act as well as with the directives as issued by the Minister of Labour. This was because the company had not conducted a risk assessment, had not consulted with its employees and/or the trade union on the vaccination policy, and had failed to take steps to respect the constitutional rights of employees who had chosen not to get vaccinated.

The company’s lawyers argued that the company’s vaccination policy was not mandatory. This assertion was based on the fact that employees who refused to be vaccinated were not prevented from coming to work. Rather, unvaccinated employees were indeed permitted to enter the employer’s premises, albeit only when they produced a negative Covid-19 test result.

The company argued that it had not violated the employee’s employment contract and that it had held extensive consultations with employees on the vaccination policy.

Labour Court Acting Judge Molatelo Makhura said that the case required the court to consider two issues; (a) whether the company’s vaccination policy had breached the employee’s employment contract and (b) whether the vaccination policy had failed to comply with the Occupational Health and Safety Act or the health and safety directives issued by the Minister of Labour.

In his summation, the judge said that the Union had not been able to refer to any clause in the employee’s employment contract which had been breached by the introduction of the vaccination policy. Furthermore, the Union could not direct the court to where, exactly, the terms of the employment contract had been unilaterally changed by the vaccination policy.

As the Union’s lawyers were unable to explain exactly how the vaccination policy had breached the employment contract of the employee, the challenge to the vaccination policy had to be dismissed, concluded Acting Judge Makhura.

Again, in summarising his judgement, Judge Makhura said that the Occupational Health and Safety Act required every employer to take reasonable steps to provide a safe and healthy working environment for its employees and non-employees, such as customers and suppliers. He added that the Occupational Health and Safety directions issued by the Minister of Labour permitted employers to make a mandatory vaccination policy once certain requirements had been met.

However, in this case, it was not clear whether the company had imposed a mandatory vaccination policy and whether those requirements applied.

The Labour Court said that the company had made it clear in December 2021 that it would not force employees to be vaccinated. The policy had simply said that employees who refused to get vaccinated would have to provide a weekly test to the company indicating that they did not have Covid-19. The vaccination policy did not state that unvaccinated employees would not be allowed onto the company’s premises, the court said.

The very fact that the employee had not been forced to be vaccinated and had been provided with an option of providing the employer with a weekly negative Covid-19 test did not render the company’s vaccination policy ‘mandatory’.

As such, the court ruled that it was not necessary for it to determine as to whether the company in question had complied with its duties and obligations pursuant to the directions to conduct a risk assessment. The duty to consult with a trade union and/or employees had been negated in this particular instance by virtue of the fact that the company had not implemented a mandatory vaccination policy at its workplace, rather an overarching Covid- 19 vaccination policy.

The Labour Court dismissed the case and ordered both the Applicant and Respondent parties to pay their respective legal costs.

Footnote

Government has in the past week published the ‘Code of Practice on Managing Covid -19 at the Workplace’ and has updated the ‘Hazardous Biological Agents Regulations’ (HBAR).

Both the Code and the Regulations are critically important and will, of necessity, have to be complied with in the event of an employer being desirous of implementing a Covid-19 vaccination policy at the workplace. Employers are urged to thoroughly acquaint themselves with the provisions of both documents.

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