Mandatory Vaccinations in the Workplace

The question whether an employer would able to force an employee to be vaccinated has been asked numerous times without any clear and concise answer.

ll employers have suffered severe impacts caused by the COVID-19 pandemic, be it because their business has been negatively impacted or be it continued disruptions in their operations due to employees being tested positive or having to self-isolate for extended periods.

The Constitution have certain clauses that protect employees that do not want to be vaccinated but it also gives the employer certain grounds to apply to enforce mandatory vaccination for its employees.

Section 12(2)(b) of South African Constitution gives every person the right to security in and control over their own body.  Section 15 gives everyone the freedom of religion, which could also be used as grounds for an Employee to not be vaccinated.

On the other hand, Section 11 gives everyone the right to life. It can be argued that the amount of deaths caused by the pandemic might justify that refusing to be vaccinated might contribute towards infringing on this right. Further to this, Section 24 gives everyone the right to a safe environment, which includes the workplace. The Occupational Health and Safety Act stringently obligates Employers to ensure a safe workplace.

The contradicting specifications in the Constitution would most likely weigh up against each other and the conclusion would provide the necessary guidance to employers. Until then, I would suggest that employers develop the required policies which should be instituted as soon as reasonably possible. The employers should prepare themselves for the possibility of employees refusing to abide by these policies. Employers should consider investing in workshops that would properly educate their employees to make an informed decision.

The employer should attempt to implement the relevant policies as the norm. If an employee comes forward and refuses to abide by the policy, the employer should reasonably consider the employees argument and consider all feasible alternatives before enforcing the policy without any exception. If the employer can prove that all possible alternatives and all of the surrounding circumstances, such as the safety of other employees, have been considered and that the risk of not being vaccinated outweighs the concerns or reasons of the employee refusing to be vaccinated, I am confident that the employer would succeed with its mandate.

These are trying and unfamiliar times. If the employee can respect and understand the employer’s reasoning for wanting them to be vaccinated and the employer can respect and understand the reasoning of the employee to not be vaccinated, the parties should be in a position where they can compromise to come to a practical solution without having to refer the matter for dispute resolution which might damage the relationship between the employer and the employee.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Corné Broodryk is an attorney at Cotney Construction Law, based in South Africa, and has over 13 years of experience in the construction industry. She focuses her practice on construction law, labour law, commercial law, and property law. Corné has worked on various major construction projects across South Africa and has extensive experience with Fidic and NEC contracts.