Mandatory vaccinations in the workplace: The constitutionality (part 2)

The second in a two-part article on the recent CCMA rulings on unvaccinated employees in the workplace.

By Jaco Swart of the National Employers Association of South Africa.

The question as to the constitutionality of mandatory vaccinations has not been determined and can only be finally determined by the Constitutional Court.

The “Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” never envisaged a blanket approach in respect of vaccinations. The direction requires employers to conduct a risk assessment to determine if a mandatory vaccination policy is required in the workplace and, if so, to identify those employees who, by virtue of their risk of transmission through their work or who has co-morbidities, should be vaccinated.

Therefore, only certain employees, in certain workplaces may possibly be required to vaccinate, and this would require a site-specific risk assessment in respect of both the workplace, as well as the working conditions and health profile of each employee. A one-size-fits-all approach can therefore not be utilised.

It is common cause that no employee may be forced to vaccinate; the question however is whether an employee who objects to being vaccinated may be dismissed. The “Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” makes it clear that an employer must consider reasonable accommodation for any employee who objects on medical or constitutional grounds in order to keep such an employee employed. At face value, it seems irrelevant whether the employer considers the objection to be valid or not.

Reasonable accommodation includes any measures, including social distancing, wearing of N95 masks, working from home etc., which would not cause unjustifiable hardship for the employer. Unjustifiable hardship is actions that require significant or considerable difficulty or expense for the employer.

It is difficult to imagine many situations where an employer will be faced with such undue hardship, particularly as employees have been working under accommodative conditions since the inception of the lockdown.

Therefore, in order to, possibly, dismiss an employee after conducting a proper risk assessment and considering reasonable accommodation, employers have three options:

  • incapacity dismissal, which, as indicated, is probably not the correct procedure;
  • dismissal based on operational requirements, which would require the employer to prove that the fact that a particular employee is not vaccinated, is threatening the viability or profitability of the business. This process comes with its own complexities and will require the employer to, again, consider all possible alternatives and provide reasons for them not being viable; or
  • misconduct dismissal, where the employer would have to prove that the employee contravened a workplace rule by refusing to be vaccinated. The question that an employer will be met with in this instance, is whether the rule in question is either valid or reasonable – a question that has, to date, not been answered by our courts.

When government scrapped the isolation requirements for asymptomatic people who tested positive for Covid-19 on 31 January 2022, their media statement indicated that 60 to 80 percent of South Africans have already had some variant of the virus and are therefore immune. This will make it extremely difficult for employers to justify mandatory vaccinations.

Employers are operating within a legal vacuum, where many questions are unresolved at this stage. Employers will therefore do well to steer away from these types of mandatory policies, and avoid possible future liability, until the courts have provided legal clarity.

The first part of this article was published on 4 February 2022.