Can your Employer force you to take the jab?

‘n Vraag wat beide werkgewers en werknemers toenemend in die gesig staar is of ‘n inenting-mandaat regtens afgedwing kan word deur ‘n werkgewer ten opsigte van alle werknemers en indien dit inderdaad gedoen word en werknemers nie gemaklik daarmee sou wees nie, wat hul onderskeie regte en verpligtinge sou wees.

In mid-June 2021 the Department of Employment and Labour issued an updated Occupational Health and Safety directive which permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines. Since then, some employers have adopted a mandatory workplace vaccination policy and have been asking their unvaccinated employees to take the Covid-19 vaccine. Questions many have asked are whether they can refuse to take the “jab” and what the consequences might be.

The Occupational Health and Safety Act places an obligation on employers to maintain a workplace that is safe and without risk to the health of employees and persons other than those employed who may be directly affected. In order to create a safe working environment during the Covid-19 pandemic employers developed infection control plans and policies to minimise the spread of Covid-19 in the workplace such as observing social distancing, wearing masks, hand sanitising and encouraging employees to work from home. Until recently these safety measures have been considered sufficient to create a safe working environment in the workplace. Whether a higher standard of safety is now required in the workplace than is required from our frontline workers (who are not all vaccinated) is a question that is worth considering.

According to the directive an employee may refuse the vaccine on medical or constitutional grounds. Medical grounds are “an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the Covid-19 vaccines. The Constitutional grounds are the right to bodily integrity in Sec 12 (2) and the right to freedom of religion, belief and opinion in Sec 13 of the Constitution.

An employee who refuses the vaccine should do so in writing and should give the employer reasons for the refusal otherwise it may be regarded as an unreasonable refusal. Such an employee should ask the employer (in writing) to accommodate them in a position that does not require the employee to be vaccinated. The directive states that reasonable accommodation includes permitting the employee to work from home or in isolation at the workplace or outside of ordinary working hours or to wear a N95 face mask. If an employer cannot reasonably accommodate the employee in a position that does not require the vaccine the employer will have to give the employee written reasons why this is impossible. An employer may face a claim of unfair discrimination if reasonable accommodation was indeed possible.

Other than approaching the CCMA in labour disputes, employees have been turning to the Human Rights Commission to protect their rights in the workplace. ‘The opinion of the Human Rights Commission seems to be that the employee’s rights cannot be limited should they refuse to be vaccinated.’ The commission asked employers, traditional leaders, church leaders and others to allow and assist those who want to be vaccinated and also to respect the choices of those who do not want to be vaccinated. The chairperson of the commission stated that it will be a violation to threaten, stigmatise, victimise and discriminate against those who choose not to be vaccinated.

Taking disciplinary measure against employees who do not wish to take the vaccine is said to be a high-risk approach which could lead to constructive dismissal, breach of contract and discrimination claims against the employer. Whether employers will be entitled to dismiss employees who refuse to be vaccinated will have to be determined by looking at the particular circumstances of each case and the principles of fairness and equity will have to prevail.

Regards / Groete,

Hennie, Eberhard & Cheryl-Anne