CHRO Community Conversation unpacks the legalities of workplace vaccination programmes

Companies need to balance providing a safe working environment with an individual’s personal rights.

In this week’s CHRO Community Conversation, hosted by CHRO South Africa in partnership with Workday, Johan Botes, the head of Baker McKenzie’s Employment Practice Group dealt with the controversial and contemporary topic of vaccination policies in the workplace.

The CHROs in attendance were keen to hear about the legalities of workplace vaccination programmes, given that this is a situation many of them will be considering in the not-too-distant future.

Johan took the highly engaged group of HR leaders through the various legal frameworks that govern the matter, including the Constitution, the Occupational Health and Safety Act, the National Health Act, the Employment Equity Act as well as the Compensation for Occupational Injuries and Diseases Act, among others.
With a number of countries across the world rolling out vaccination programmes, and South Africa announcing its three-phase roll-out approach, HR leaders were eager to learn and provide input on their organisational thinking on the issue.

Johan started by outlining the national Covid-19 vaccine rollout plan established by government. Workplace programmes have been identified as one of the three platforms to deliver the vaccines. The other two are outreach programmes using mobile teams and vaccination centres.

Johan said, “President Ramaphosa has said there will not be compulsory vaccinations. South Africa does not have a policy of compulsory vaccination, except for yellow fever in certain international travel. Vaccination schedules for children are encouraged but there is no legal requirement.”

In terms of legislation, Johan pointed out that that the Constitution deals with the right to psychological and bodily integrity, which protects an individual’s right to object to a workplace vaccination policy based on beliefs, cultural, religious or medical grounds.

Inherent job requirement
How then does an employer balance the legal requirement of providing a safe working environment for their employees during a viral pandemic with the constitutional right to object to vaccination?

“There should be a distinction between compulsory vaccination and making vaccination an inherent requirement of a role or a job in order for an individual to function in a role,” Johan explained.

He used the airline industry as an example of an inherent job requirement provision.

Johan said:

“Some countries have requirements to enter, like producing a valid yellow fever vaccination certificate. This applies to air and crew members who work on that airline route. So, a number of airlines have adopted it as a valid workplace rule. In order for you to be part of the airline crew, you have to have the yellow fever vaccine. If not, then the employee cannot be used in the role. Consequently, an incapacity process has to be followed.”

According to Johan, alternatives to accommodate an employee should be given careful consideration.

“Before considering a compulsory workplace vaccination policy consider alternatives like viability of continued remote work, the number of vulnerable employees in the workplace, the effectiveness of additional PPE where necessary, temporary alternative placements, employees’ exposure to the public and the number of employees with religious and/or medical grounds for objection,” he advised.

Education first
Johan added, “We have to avoid one size fits all when it comes to compulsory vaccination. Out-educate rather than out-legislate. We can adopt a wait-and-see approach and ensure there are sufficient precautions in the workplace like PPE, sanitisers, testing, social distancing, mask wearing. Take sensible steps before implementing the onerous obligation of compulsory vaccination.”

The topic of workplace vaccination was of high interest to the HR leaders in attendance, many of whom noted their support for educating employees and focus on ensuring that stringent precautionary pandemic protocols were a key part of their workplace health and safety strategies.