Employers and vaccine mandates

by Daniela Ellerbeck
14 March 2022

*Note:  As an organisation, Freedom of Religion South Africa (FOR SA) is not for, or against, vaccination but believes it is the right of every individual to choose for themselves whether (or not) to take the vaccine, and also to express their beliefs or opinions in this regard.  

Introduction:
The issue of workplace vaccine mandates has been in the foreground since Discovery became one of South Africa’s first employers to introduce compulsory vaccination for its employees in September 2021.  Since then, other employers have followed suit.  In January 2022, Commission for Conciliation, Mediation and Arbitration (“CCMA”) gave two (2) decisions involving cases where employees were either dismissed or suspended for choosing to remain unvaccinated.

In this article, we look at what the law says, as well as what happened in the two (2) CCMA decisions.

May employers decide to make it mandatory for their employees to be vaccinated?
The short answer is yes. In terms of the Department of Labour’s Consolidated Direction on Occupational Health and Safety – see Clause 3(1)(a)(ii) – an employer may decide that it wants to make vaccination mandatory.  Should an employer wish to so, it must as part of its Risk Assessment, identify those employees who must be vaccinated (due to the risk of transmission through their work, or because their comorbidities put them at risk of either getting severely ill or dying should they become infected with COVID.)

The long answer is a bit more complicated, because the Department’s Consolidated Direction (Clause 3(4)), also clearly states that employers must take into account the employees’ constitutional rights to bodily integrity (section 12(2) of the Constitution) and religious freedom (section 15 of the Constitution).  (For our article on religious freedom as a ground for objecting to being vaccinated click here.)

What is the legal framework?
The first port of call is South Africa’s supreme law – the Constitution.  Of importance here are the following rights – bodily integrity (section 12(2)), religious freedom (section 15), healthy environment (section 24(a)), access to healthcare (section 27(1)(a)).  None of these rights are absolute, and the General Limitation Clause (section 36) makes it clear that they can be limited by a law of general application. However, this can only happen to the extent that such a limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors listed in section 36.

To date, there is no “law of general application” which makes vaccination mandatory, either in South Africa generally, or in the workplace specifically.  In fact, the National Health Act, 2003, specifically states that a person needs to give informed consent to health care services (section 7) and that they may not be treated against their will, unless failure to treat will result in a serious risk to public health (section 7(1)(d)).

When it comes to the workplace specifically, there is the Occupational Health and Safety Act, 1993. This law obliges employers to create safe working environments for their employees to work in (section 8(1)).  This includes keeping employees safe from hazardous biological agents (read “COVID”).

This, in broad strokes, is the legal landscape we find ourselves in.

 How should employers take unvaccinated employees into account?
The Department has tried to make this clear by including a guideline (as Annexure C) for employers who want to make vaccination compulsory in its Consolidated Direction.

This guideline, which deals with the fairness of such a mandatory vaccination policy, explicitly states that the most important principle is mutual respect between the employer and employee.  Public health imperatives, employees’ constitutional rights, and the employer’s need to run an efficient business, are all elements that are prized.

It further states, amongst other things, that an employer should explicitly inform those employees that it has identified as needing to be vaccinated, of their right to refuse to be vaccinated on medical and / or constitutional grounds, and that the employer must try to reasonably accommodate those employees who cannot or will not be vaccinated.

The Department then goes further, and explicitly defines what such reasonable accommodation means in the context of mandatory vaccination:  it is any change to the job or work environment of such employee who does not want or cannot be vaccinated, that will allow them to remain employed by the employer. The Department then even gives practical examples of what such reasonable accommodation may look like – allowing the employee to work from home or even to allow them to work outside of normal working hours etc. What is clear, is that even if an employer chooses to implement a mandatory vaccination policy, it cannot implement it in a blanket way.

As one can see, what the Department is trying to do through these guidelines is to balance the employees’ constitutional rights with the employers’ business operational requirements in a fair way.  Of course, there are certain jobs, which by their very nature, cannot be changed to accommodate an unvaccinated employee.  It is this scenario that the CCMA considered in the following two (2) cases.

 What happened in the two CCMA cases?
Both cases were decided in January 2022. (Note: CCMA decisions do not set legal precedents and are not binding on courts, having merely persuasive value.)

The first case, of Theresa Mulderij v Goldrush Group (GAJB 24054-21) is an arbitration which was decided on 21 January 2022.  Here, we are dealing with a complaint of unfair dismissal (for permanent incapacity).  The employee’s job as a Business Related and Training Office.  The employer identified her as a high-risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces, and required her to be vaccinated.  She applied for an exemption, in terms of the employer’s Mandatory Vaccination policy, which exemption the employer considered and declined.  She had no intention to get vaccinated, and due to the nature of her job, which required her to physically interact with property owners and colleagues, the company couldn’t change her job or work environment and she could not be reasonably accommodated. The employer found her to be permanently incapacitated and dismissed her.

In challenging her dismissal, she relied on her section 12(2) constitutional right.  The arbitrator found her to be incapacitated permanently incapacitated on the basis of her decision to not getting vaccinated and implication refusing to participate in the creation of a safe working environment. This incapacity was found by the arbitrator to be a legitimate reason for her dismissal, which was found to be substantively fair.

The second case, of Gideon J Kok v Ndaka Security and Services (FSWK 2448-21) is also an arbitration and was decided on 25 January 2022.  It involved a complaint of unfair labour practice (for suspension) in circumstances where the employee was not allowed into the workplace, without either having been vaccinated or having tested negative for COVID (something he did not want to do as he had to personally pay for the tests).

The employee was employed as a Safety Practitioner for a company in the private security industry.  As a Safety Practitioner, the employee had to interact closely with clients, guards and the public.  Contact tracing also revealed the likelihood that he had previously infected several colleagues with COVID-19, during which time the entire office had to close down for employees to self-isolate.  Due to the nature of the Safety Practitioner’s duties, he could not work in from home, or in an isolated office.  Again, as a result of the nature of the job, the employer could not modify either the job or work environment in such a way that allowed for any other way of accommodating the employee (apart from the negative COVID test he was unwilling to pay for).

In the circumstances, the arbitrator found that the employee was not unfairly suspended.

Conclusion:
What we learn from both cases is that there will be certain jobs where it will be impossible for employers to accommodate unvaccinated employees, because the very nature of the work the job involves physical contact with other people.

What FOR SA suggests is that in circumstances where an employer wishes to institute a mandatory vaccination policy, and an employee cannot, or does not, want to be vaccinated, they send a written request for reasonable accommodation to their employer, in which they e.g., set out why they cannot, or do not, want to be vaccinated, as well as how they suggest their job and/or work environment can be changed to allow them to remain employed.  Importantly, if they cannot, or do not, want to be vaccinated, because of their conscience, religion, thought, conviction and opinion, they should explain in writing why the vaccination goes against their faith etc. What is important here is that a person who wants to rely on their beliefs must be able to show that their faith requires that they all refuse medical treatment, including any kind of vaccination. Consistency is key.

Finally, employers should also be aware of the possibility that they may face a charge of unfair discrimination if they do not reasonably accommodate employees, when such accommodation is possible.

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see https://forsa.org.za/about-us/our-team/

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