A Precedent for Workplace Vaccination Policy

Employers have been waiting with anticipation for authority on mandatory workplace vaccination policies – well, the courts and the Legislature have, in some measure, answered employers’ calls.

Central to the debates on whether COVID-19 vaccinations should be mandatory in the workplace are the conflicting constitutional rights applicable to these issues and the many different moral and ethical opinions surrounding them. It is a contentious area of litigation as objections to vaccinations usually stem from deeply held religious and cultural beliefs or health concerns. Mandatory vaccination policies involve a complex balancing of the rights of those employees who hold strong religious, cultural or health objections to vaccinations and the rights of vulnerable employees who could experience severe effects should they contract Covid-19 together with the associated obligation of employers to provide a safe workplace.

Code of Good Practice: Managing Exposure to SARS CoV-2 (‘Code’):
The Code of Good Practice is the authority on workplace health and safety regarding the management of Covid-19 protocols in the workplace.

The Code provides for employers to implement mandatory vaccination policies within their workplace, subject to certain conditions. Additionally, there is no prohibition in any other legislature that prevents employers from implementing mandatory vaccination policies in their workplace, provided that the policies are consistent with other legislation.

CCMA / Labour Court Authority:
While the issue is far from settled, there have been several cases decided in the early part of this year which provide some insight on the approach of the courts and the Commission for Conciliation, Mediation and Arbitration (‘the CCMA’) in respect of employer’s vaccination requirements.

It is an oft-repeated phrase in our courts that ‘each case must be decided on its own merits’ and this is applicable here – it presupposes that an employer must implement a vaccination policy in accordance with its own circumstances. This is perhaps the single most important consideration when determining the fairness of imposing a mandatory vaccination policy in the workplace.

In Dreyden / Duncan Korabies Attorneys, the CCMA considered other relevant factors including, amongst others, the size and nature of the workplace, the nature of the job, ventilation in the workplace, degree of exposure to third parties; or reasons for an employee’s refusal to vaccinate.

The recent arbitration awards of T Mulderij and Goldrush Group and GJ Kok and Ndaka Security Services, the CCMA emphasised the importance of risk assessments conducted by the employers prior to the implementation of vaccination policies.

In early January 2022, the National Black Consumer Council (‘NBCC’) launched an urgent application in the Constitutional Court seeking clarity from the court on the now repealed Consolidated Direction on Occupational Health and Safety in Certain Workplaces (‘Directions’), which Direction allowed employers to implement mandatory vaccination policies in the workplace, provided employees are made aware of the right to object to the vaccination on medical or constitutional grounds. The basis of the NBCC’s contention is that the right to human dignity, a non-derogable right, would be infringed if mandatory vaccinations are implemented within the workplace; and further that the implementation of a mandatory vaccine policy is ultra vires. The NBCC’s application for direct access was, however, refused by the Constitutional Court and the NBCC will now have to proceed with an application in the high court.

From looking at the relevant authorities and the recent approach of the courts, it appears that vaccine mandates will pass constitutional scrutiny, with the National Economic Development and Labour Council supporting requests for the Constitutional Court to make a declaratory order enforcing mandatory Covid-19 vaccines in the workplace.

Employers are, however, encouraged to seek legal advice before implementing any policies that restrict employee’s admission to the workplace for reasons associated with Covid-19, or which may result in any disciplinary action.