Can employers force their employees to receive COVID-19 vaccine?

Can employers force their employees to receive COVID-19 vaccine?
"Without any statutory obligation to make vaccination compulsory, the complex yet unavoidable question facing South African employers is whether or not to adopt a mandatory COVID-19 vaccination policy in the workplace.”

ICON_PLACEHOLDEREstimated reading time: 3 minutes

Newcastle and other South African employers should anticipate, and may well have already experienced, pushback from those in their workforce who are apprehensive about taking the COVID-19 vaccine for various reasons.

According to the law firm ENSafrica, “With all the hype and hoopla about the vaccine and the prevalence of social media, employers should also anticipate the spread of fake news about the vaccine, which may undermine any ‘hearts and minds’ campaign regarding a vaccination policy in the workplace.”

The question is, does an employer have the right to force an employee to receive the vaccine? “Unlike in other jurisdictions, South Africa does not currently have a law governing the vaccine roll-out. Without any statutory obligation to make vaccination compulsory, the complex yet unavoidable question facing South African employers is whether or not to adopt a mandatory COVID-19 vaccination policy in the workplace.”

Moreover, ENSafrica stresses that employers undoubtedly have an obligation to protect their employees and maintain a healthy and safe working environment, including a mandatory vaccination policy.

However, it is necessary to point out that the Constitution safeguards everyone’s, including employees’, rights to life, belief and opinion, religion and bodily and psychological integrity, which includes the right to security in and control over their bodies.

Therefore, the law firm explains that navigating their approach to the vaccine, employers will need to balance health and safety obligations, with the constitutional rights of their employees. “To strike the delicate balance necessary to navigate and respond to this question appropriately, employers need a full appreciation of the legal and other factors at play in their workplaces.”

Health, safety and medical objections

According to the law firm, employees may refuse to receive the vaccine because of their concerns regarding its potential side effects. Some fear unknown long-term effects of the vaccine, as well as the possible implications for those with auto-immune diseases or medical conditions preventing them from being vaccinated.

These concerns and fears may, in some instances, be justifiable. For example, employees on particular medication may experience an adverse interaction between the vaccine and the medication.

In determining how to manage employees who raise these issues in response to employers implementing a vaccination policy, ENSafrica claims employers must be well-informed regarding the risks associated with the vaccine and are sensitive when weighing up these concerns.

Employers should be armed with answers relating to which vaccine employees will be receiving and the associated risks. As well as, will employees be permitted to consult their doctor prior to receiving the vaccine, and will the business pay for any such consultation.

Moreover, the imposition of a vaccination policy in the workplace may potentially generate discrimination issues (most notably on the grounds of disability, age and/or religion or belief). In addition, employers will need to appreciate the fact that they may well be liable for employees who later experience adverse health effects as a direct result of the vaccine.

Religious and cultural objections

Employers may likewise confront pushback from individuals who are averse to how the vaccine is developed and/or manufactured for religious or similar reasons.

ENSafrica points out employers should strive to take religious and cultural objections seriously and aim to respect and accommodate these views, to the extent they are genuinely held.

With this in mind, while employers are likely excited about the arrival of the vaccine and prospects of it positively impacting business activities going forward, ENSafrica says employers should not approach the imposition of a vaccination policy in the workplace too hastily. “Considered legal advice based on their specific context, operational needs, employees and business will be indispensable to this exercise,” it says.

Commentary by Lauren Salt (executive) and Jessie Moore (candidate attorney).

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