Legal experts and human capital leaders uncovered the implementation of mandatory vaccination policies in the workplace.
There are few subjects currently more polarising than mandatory Covid-19 vaccinations and a heated discussion during this particular HR Indaba session clearly reflected that.
Those for vaccinations insist that it is about the health of employees and customers, while those against them argue that constitutional rights and freedom of thought are being compromised. Everything from law and science to social and moral obligation was on the table, and vigorous debate ensued.
Discovery was one of the first large organisations to implement mandatory vaccinations, leading many companies to do the same. Steven Teasdale, chief people experience officer at Discovery explained that this decision was underpinned by six key elements, public health imperatives and an underlying legal obligation to safeguard all employees from more potential risks, among them.
“Fundamentally, we felt this was the right thing to do. The role we play in South Africa as Discovery, we needed to take a public lead on declaring mandatory vaccinations and we felt this would encourage many other organisations to take a bold step,” he said.
Johan Botes, head of employment practice at Baker McKenzie, said that from a legal practice perspective, they anticipated a groundswell of other companies following suit once Discovery made the move. He said as of March, 18 other large organisations had some version of vaccination mandates in place.
When the Discovery mandate was initially introduced, around 22 percent of employees were vaccinated, whereas current figures now reflect a whopping 98 percent of Discovery employees as vaccinated. The remaining two percent account for those who cited medical, religious and cultural reasons not to vaccinate – which were legitimised through an objections process.
Dr Noluthando Nematserani, head of Centre For Clinical Excellence at Discovery, said there was clear evidence that vaccines work. “If we had not mandated vaccines, we would have got slow traction from our employee base,” said Noluthando. It opened up opportunities for them to engage extensively with staff – including doing webinars, creating a Covid-centric information hub for employees to access information, and facilitating one-on-one discussions to help people make informed decisions around their health.
Noluthando believes that going that route avoided further vaccine hesitancy and people consuming misinformation and myths: “Because there was this process initiated by business, people sought credible information and came forward. We engaged them extensively and made time to answer their questions,” she said.
Gerhard Papenfus, chief executive at National Employers’ Association of South Africa,
objects strongly objected to mandatory vaccination policies and dismissed vaccination efficacy. A large debate ensued as he cited an infringement of rights to freedom and government mistrust as some of the reasons he didn’t believe that vaccinations should be mandatory.
“The constitutional provisions in terms of personal rights are breached in each and every respect,” he said. He felt intimidation politics were also at play, as he felt it was immoral and illegal to force people to do something.
Johan felt otherwise, citing that there was at least one Labour Court reported decision that created legal precedent for this: “The Labour Court has said that it is acceptable for an employer to dismiss an employee who refuses to be tested under circumstances where there is a testing requirement for access to the workplace,” he said.
He cautioned those suggesting that feeling that a law is unjust is a reasonable justification not to follow it. “The Constitution itself clearly states that any right with the Bill of Rights can be limited,” said John. “It is a matter of balancing rights and conflicting interests. The concern is that many more employees following that line of argument will get dismissed,” he said.
Steven said the response from the market and stakeholders has been generally favourable. Employees were typically supportive of the idea albeit with some discomfort around whether this policy implementation would lead to other “mandatory” practices. Clients, health professionals, government, suppliers and the media were all supportive. “It landed okay. The one thing that was always unknown was how that legal framework would unravel as we went on and what it would mean,” he said.
Multiple changes in the framework did indeed follow, but according to Botes it would seem that the judiciary was largely in favour given that the legal framework allows for an employer, subject to various checks and balances, to actually mandate vaccinations. Some employers require either proof of vaccination or a negative Covid-19 test to grant employees access to the workplace. “This is where a number of companies have landed as a middle ground option – to strongly encourage people to get vaccinated without mandating it,” Johan said.
Some companies opted to put several other safety measures in place, while others didn’t intervene at all. “Which is right isn’t fair to say,” said Johan. “Not any one of those is an absolute. It is dependent on the industry that you are in, the organisation, the overriding role that you play as a corporate citizen within our society. There are so many factors that impact on whether it is the right or appropriate decision for you as a business to take,” he explained.