Vaccinations and their impact on the Workplace

The analogy between Hamlet’s soliloquy, ‘To be or not to be – that is the question’ and the question of whether employers could, or should, make vaccination in the workplace compulsory, is obvious.

In Shakespeare’s Hamlet, Prince Hamlet contemplates death and suicide, bemoaning the pain and unfairness of life, whilst at the same time acknowledging that the alternative might well be worse. So too, the vexed question of whether employers will have the right to enforce the ‘rule’ that only vaccinated employees will be allowed to be employed in the workplace, and whether employees will be able to invoke their constitutional right not to be vaccinated.

Against the backdrop of Covid-19 having destroyed the lives and livelihoods of many thousands of South Africans, a legal debate is raging as to whether employers can make the administering of the coronavirus vaccine compulsory for employees. Rumour has it that the current disaster management regulations in South Africa will be amended to underscore a worker’s right to a safe workplace, and by so doing, advance the argument of making vaccinations at the workplace mandatory.

It is important that employers have a coherent vaccination plan and policy in place, and that the plan is transparently communicated to all employees. The coherent and transparent vaccination plan to which I allude, will go a long way in mitigating against any potential litigation, especially in unionised environments.

Employers and unions/employee bodies will need to agree on an approach to deal with non-vaccinated workers. To illustrate the point, where vaccination could be deemed to be an inherent requirement of a particular job, or where workers are required to work together in confined spaces, there remains uncertainty about the handling of these workers who are opposed to being vaccinated. Conversely, workers working in low-risk environments but who also need to be vaccinated to achieve the ultimate objective of herd immunity, will have a stronger argument against vaccination. Agreement between employer and employee/employee bodies will also be required to be reached in respect of these two scenarios.

The above needs to be juxtaposed with the rights of an employee as enshrined in the Occupational Health and Safety Act (OHSA). ALL employees have the right to a safe workplace. The Act was passed to, inter alia, prevent workers from being killed or otherwise harmed at work. The law requires employers to provide their employees with conditions that are free from known dangers. The OHSA entitles ALL workers to three fundamental rights, namely:

• The right to know about health and safety matters at the workplace

• The right to participate in decisions that could affect their health and safety

• The right to refuse to conduct work that could affect their health and safety and that of others

Of course, not all vaccination issues at the workplace will be subject to a negotiation/consensus seeking process. Prevailing and contemplated rules, regulations and legislation may well be instrumental in determining an employee’s decision whether to be vaccinated or not. For example, the contemplated introduction of mandatory ‘vaccination passports’ for international travel will result in migrant workers from neighbouring countries, as well as employees having to travel to other countries as part of their job, having no choice but to be vaccinated.

Furthermore, many contractors and service providers are being used at many South African workplaces. The likelihood of employers insisting that only those service providers/contractors whose employees have been vaccinated being permitted to provide services at that employer’s workplace, remains high.

It is also highly likely that, going forward, employers will amend their conditions of employment contracts to make vaccination a prerequisite for new entrants.

With all said and done, however, employers will be required to balance its health and safety obligations with that of the constitutional rights of its employees. Robust and vigorous debate regarding this issue is guaranteed!

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