Can your employer force you to take the COVID-19 vaccine?

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Well, the first batch of COVID-19 vaccines has arrived in South Africa. And although many “high-risk individuals” are elated by their arrival, there is still a large portion of the country that are rather skeptical. The reasoning behind this skepticism varies from person to person, but the fact remains that a large population of our country does not want to receive a vaccine jab.

Now I am not going to tell you if you should or should not get vaccinated, it’s simply not my place. All I am going to say is, do your own research, find facts not opinions, and then decide for yourself if the vaccine is right for you or not. I say this now because currently, you do have a choice, getting vaccinated is not mandatory by law. But could your employer require you to get vaccinated or terminate your employment if you refuse? Let’s have a look at this question in more detail.

I am going to start by saying that it is still very early days and things are going to change. If this is something that you are dealing with I highly recommend that you contact a legal representative to assist or advise you.

Can I get fired if I don’t get vaccinated?

There are a number of conflicting acts currently in place which is why this is such a difficult question to answer. I have no doubt that as we move forward this issue will be discussed by both employer and employee representatives and some clarity will emerge.

As it stands now we must remember that receiving a vaccination is a medical procedure and is therefore regulated by the National Health Act. This act clearly states that there must be voluntary and informed consent for a medical practitioner to perform any medical procedure on a person.

Voluntary informed consent

Voluntary and informed consent. From this simple statement, we can already see that mandatory vaccination could not currently be imposed on South Africans. The Minister of Health recently laid out the Electronic Vaccination Data System for South Africa. The idea being that as soon as you register you have automatically given your consent for the “vaccination procedure”.

But this still does not answer our question regarding the workplace. As I said, you can refuse to get vaccinated, but would your employer be able to dismiss you for this?

Employment Equity Act

Another very important act that will need to be looked at when the courts eventually have to decide if an employer can insist that its employees must get vaccinated is the Employment Equity Act. Section 7 of this act actually deals with medical testing in the workplace.

Employment Equity Act Section 7

Medical testing. –

(1) Medical testing of an employee is prohibited, unless-

(a) legislation permits or requires the testing; or

(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

From the section above we can see that there are conditions that would make testing possible, and it could be that this Act is used to leverage the position of an employer requiring its staff to get vaccinated. Especially if there is an increased risk of COVID-19 exposure or transmission associated with their job. This is very likely to be the case with frontline workers who could potentially pose a risk to patients that they are treating.

It will not however override the requirement of consent.

What if I refuse the vaccine?

Another issue that will need to be addressed is the Occupation Health and Safety Act which states that the employer must, where reasonably practicable, provide and maintain a safe, healthy work environment that is without risk to employees. According to the OHS Act, it is the duty of every employee at work to take reasonable care for the health and safety of himself as well as other persons.

Considering that the entire world considers us to be in the midst of a global pandemic, it could be argued that not requiring employees to get vaccinated is in contravention of the OHS Act.

So what should an employer do if an employee does not wish to get the jab? Let’s assume that an employee has a legitimate reason, be it religious, cultural, or they are just extremely uncomfortable with the medical procedure for their own personal reasons. How do we decide whose rights are more valid? Is it the staff member who has the right not to get vaccinated? Or is it the staff member who has the right to safe working conditions?

It is a tough question, and your answer is definitely going to be influenced by your personal bias. This is essentially the problem the world is currently facing, everyone has a different opinion and people are failing to find middle ground. Why have people forgotten how to discuss and compromise?

Dismissal for operational requirements

From what we have discussed so far I am sure you can already see that the issue is far more complicated than expected. However, there are a few instances where it might become quite simple to determine if an employer is able to dismiss an employee for not getting vaccinated.

The circumstances that I am referring to is when not being vaccinated makes it impossible for the employee to continue performing their duties. For example, if a requirement of the job is to fly frequently for business and airlines do not allow passengers to travel if they have not been vaccinated, then it might be well within the rights of the employer to dismiss the employee due to operational requirements.

Constructive Dismissal

Another matter that employers may have to contend with is the issue of constructive dismissal. It is far more likely that in the majority of companies vaccines are not mandatory by law. Companies will be expected to encourage staff to be responsible and voluntarily get vaccinated. It might even be that companies are expected to absorb some of the costs associated with getting staff vaccinated.

Employers will need to tread lightly though, if they are too forceful and create an unpleasant working environment for those staff who refuse to get vaccinated they might find themselves headed to the CCMA for constructive dismissal.

Employers must also remember that if they do put a vaccination policy in place it will most likely involve adapting existing conditions of employment for the current staff. This can not be done unilaterally, and discussions with the staff would need to take place first.

Conclusion

I think it is safe to say that we are entering uncharted territory and policy changes are going to happen. Probably quite soon. But until then you are not legally required to get vaccinated, and currently, your employer can not terminate your contract of employment for non-vaccination.

Stay safe, and please leave me a comment below. I would love to hear your thoughts on mandatory vaccination in the workplace.