South African employers could have grounds to dismiss workers for refusing to take the COVID-19 vaccine.
This is according to a new guide published by legal firm Cliffe Dekker Hofmeyr, which outlined steps companies should take when implementing a mandatory workplace vaccination policy.
According to the firm, there were no legal restrictions prohibiting South African businesses from enforcing compulsory vaccination policies for their workforces.
“While mandatory vaccinations may not be immediately applicable in light of the availability of the vaccine, it is useful for employers to begin considering its workplace policies in this regard and to commence educating and communicating with its employees about the subject,” Cliffe Dekker Hofmeyr said.
The firm stated that the introduction of such policies would need to be assessed against the principle of reasonableness.
It added that the health and safety litigation at the commencement of lockdown showed the country’s courts were of the view that binding national health and safety guidelines which present a uniformed approach were necessary to protect employees.
What employers will need to consider
Staff members would need to be consulted on the implementation of a mandatory workplace vaccination policy, however, as this would constitute a unilateral change to the terms and conditions of employment.
Before implementing such a policy, due consideration would also have to be given to several factors, including:
- The viability of continued remote work.
- Number of employees required to travel domestically and internationally for work related purposes, particularly if the COVID-19 vaccine is made mandatory for international travel.
- Number of vulnerable employees in the workplace.
- The effectiveness of additional PPE.
- Temporary alternative placements for employees who are vulnerable and/or who have a higher risk of exposure to the virus.
- Number of employees exposed to the public.
- Number of employees who are directly/indirectly exposed to persons with COVID-19
- The rate of infections and/or fatalities in the workplace because of COVID-19.
- The number of employees with religious, cultural and/or medical objections to inoculation.
- The effectiveness of alternative, less imposing measures to limit the risk of the spread of COVID-19 in the workplace
- Reports from vaccination programmes around the world.
- Whether the employer is prepared to subsidise or pay for the vaccination of employees who would not otherwise be in a position to afford the vaccine.
Grounds for refusing vaccine
All objections by employees to take the COVID-19 vaccine must be considered on the facts of the case before the company, Cliffe Dekker Hofmeyr said.
This should take into account the evidence produced by the employee for their objection to obtaining the vaccine.
“The objection of the employee must then be balanced against the risk and impact of COVID-19 in the particular workplace and the rights of all employees to a safe working environment,” the firm said.
It stated there were two general categories which formed grounds for refusal of the vaccine.
Firstly, employees could reject the vaccine based on medical and safety concerns.
“Employees in high-risk categories who may suffer adverse effects from a vaccine or those having a compromised immune system may object to being vaccinated, where there is no science to the contrary,” the firm said.
“In addition, employees who have showed no sign of the virus over the period of the pandemic or those who have contracted the virus may also elect not to be vaccinated.”
“Medical objections will need to be assessed thoroughly given adverse reports from vaccination programmes around the world together with the recommendations of medical practitioners,” the firm added.
Secondly, employees may also object to being vaccinated based on the incompatibility between their religious, cultural, or philosophical beliefs and vaccination policies.
“This includes both superstitious beliefs and beliefs rooted in the interpretation of religious text,” Cliffe Dekker Hofmeyr stated.
“In addition, employees may also raise objections to being vaccinated because the vaccines may include substances such as swine, whose consumption is prohibited for religious reasons, or for various other cultural and/or philosophical beliefs pertaining to the consumption of animal products or the manner in which vaccines are tested,” the firm added.