Countless South Africans are anxiously awaiting
their chance to get vaccinated against the novel coronavirus (COVID-19).
However, in many countries, some people have refused to be inoculated.
Our President made it clear that this is a
voluntary vaccine.
While
no firm regulations are in place around international and interstate travel,
some countries may require travellers to have a Covid vaccination passport. In
time, pubs and restaurants could also refuse entry to people who refuse to get
vaccinated.
Can your
current (or prospective) employer force you to be vaccinated as the government
eases pandemic restrictions and we go back to work? Can a mandatory COVID-19
vaccination be required as a condition of employment? Can an employee be dismissed for refusing to be vaccinated?
The law is
unclear. Until our courts rule on a case-by-case
basis, employers should be wary of making a jab compulsory and dismissing an
employee who refuses the vaccination.
Our courts
will balance employees' rights between our Constitution (that gives citizens
the right to privacy or bodily integrity) and compliance with health and safety
protocols. The applicable laws are the Disaster Management Act, the
Occupational Health and Safety Act, the Mine Health and Safety Act, and other
legislation pieces, including the Labour Relations Act (the LRA).
Section
187(1)(f) of the LRA makes a dismissal automatically unfair if an
employer unfairly discriminates against an employee on grounds such as age,
religion, conscience, and belief as well as "any other arbitrary ground".
Time will tell if an employer can fairly dismiss an employee who refuses the
vaccination on religious or similar grounds.
Employers
should create a Covid vaccination policy that may be
mandatory or flexible, depending on the workplace health risks.
The ultimate test will be if the
mandatory vaccination policy was fair and reasonable in the circumstances of
each case. If it was, an employee's refusal to be inoculated might be a ground
for dismissal.
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