As concern around the world grows over vaccine hesitancy, and with many companies returning to the office, the question of vaccine mandates is on everyone’s minds. Can employers implement vaccine mandates? And, if they do, can employees refuse to comply?
In short: yes, employers can implement these mandates. And employees can refuse to comply on reasonable grounds — no one can be forced to get the jab. This is according to labour law experts from Fluxmans Attorneys. The company co-hosted a webinar with the Mail & Guardian on vaccine mandates in the workplace, on 9 September 2021.
Ira Epstein, Joint Chief Executive Officer and Managing Director at Fluxmans, said that on 11 June 2021, new directions were issued by the government pertaining to health and safety at the workplace during the Covid-19 pandemic.
Epstein said the directions had effectively stopped the debate about whether employers can have vaccine policies — it is now clear that they are allowed to do so.
“However, when implementing such a mandate policy, employers need to ensure that the rights of employees to bodily integrity and religious freedom and beliefs are taken into account. It also encourages the introduction of mandatory vaccination policies that are based on mutual respect, which achieves a balance between public health imperatives, the constitutional rights of employees, and the efficient operation of an employer’s business,” Epstein said.
Employers are allowed to implement mandatory vaccination policies after doing a risk assessment, which shows that the policy is an operational requirement for the business.
Bronwyn Marques, a director of employment at Fluxmans, said the government had made it clear that the vaccination programme is not a compulsory one and the vaccines may only be administered by consent.
But what recourse do employers have if employees refuse?
Danie Pretorius, member of the Fluxmans executive committee and also Head of the Employment Department, said employers would need to understand the reasons why the employee refuses to get vaccinated. This would include consulting with the employee and allowing them to consult with their trade union or representative, or getting any medical advice they might need.
Marques said employees could object to being vaccinated on various grounds, which include religious and cultural, constitutional or medical.
But what can employers do if employees refuse to be vaccinated on religious grounds? Pretorius said they would be within their rights to ask for some kind of evidence that vaccination goes against their religious beliefs, such as proof from their minister or a copy of membership of a religious organisation.
Pretorius said it was important to point out that constitutional rights were not absolute.
“The fact that you have the ability to opt-out, in itself, puts paid to the constitutional challenge. No one is forcing anything upon you. You make the election of whether to be vaccinated or not. The real question occurs after you’ve made your election, and that is, what are the consequences of it,” he said.
The government directions indicate that employers must consult with employees who refuse to get vaccinated to find out whether their refusal is based on reasonable grounds. Certain grounds could not be considered reasonable, Pretorius said.
For example, some employees might refuse to be vaccinated on the grounds of their right to bodily integrity.
“During the consultation you would be well within your rights to ask such an employee, have you ever had an injection? Have you ever been vaccinated or had a drip put in you? And if the person says yes, I don’t see how that can possibly be a reasonable objection,” Pretorius said.
Many questions have arisen about the legality of these vaccine mandates, and one of the most pressing questions was whether the mandates constituted a change in the terms and conditions of employment.
Probably not, said Pretorius. However, he said that employers were generally allowed to change the terms and conditions of employment unilaterally, as long as they consulted with their employees first.
Employers could also offer incentives to encourage staff to get vaccinated, as long as this was not done in a discriminatory manner. They could also make vaccination mandatory for certain types of employees, if necessary, the Fluxmans experts agreed.
“The direction (from government) is quite clear that you can differentiate between the risk that you may face through a certain grouping of people,” Pretorius said. As an example, he mentioned airlines, which have insisted that their public-facing employees be vaccinated.
“I think people who work with the public or in confined spaces such as aircraft, you can insist that they be vaccinated,” Pretorius said.
Marques said this could also apply to vulnerable employees. The new directions allow employers to ask employees to disclose their health status, she said.
Ultimately, employers have a legal duty to provide a safe working environment for their employees, and this will need to be weighed up against the individual rights of employees who object to being vaccinated, Pretorius said. — Sarah Evans
To view the webinar, click below: