South African cellphone giant MTN is the latest company that has introduced mandatory vaccinations for all its employees. There have been questions around the labour law and mandates. The Daily Vox takes a look at the process of mandatory vaccination in a workplace.
MTN’s policy forms part of its obligation to provide a safe work environment. They have an exemption policy for staff that refuse the policy on certain grounds. Those who still refuse to get vaccinated and are not exempt will have their employment contracts terminated. The mandate takes effect in January 2022. Dischem has also announced a mandatory vaccination policy.
Cameron Morajane from the Commision for Conciliation Mediation and Arbitration (CCMA) said employees have the right to raise objections to the mandate. They can refuse on medical grounds, tradition or cultural beliefs. The disputes occur when employers require proof that your religion/culture says you should not take vaccines. He explained that in terms of the Labour Relations Act, Employment Equity Act and the Constitution, provisions are made for workers who refuse to take the vaccine.
Rights are limited in terms of section 3 of the South African Constitution.
In terms of section 36(1) of the Constitution, the general requirements for the limitation of any right is that it may be limited only in terms of law of general application “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”
There is no law in South Africa that makes it mandatory to take a vaccine. The Constitution does create a condition that could make it mandatory, said Morajane.
The Occupational Health and Safety Act of 1993 says employers have an obligation to take reasonable measures to ensure that the working environment is safe and without health risks for its employees. Mandatory vaccination may be justified in situations where employees work in close proximity and are exposed to the public.
Mandatory vaccination at work
Labour wise has a succinct framework to follow in ten steps. A Covid-19 risk assessment must be conducted. This should be followed by a vaccination plan. This involves providing Covid-19 vaccination education and counseling. Employers must then assist those who wish to be vaccinated assistance with registering and time-off. Timeous notice must also be given about a mandate in the workplace, and right of refusal.
Refusal is bound to happen. Here employers are advised to engage with the employees to establish why. If an objection is made on medical grounds, the employee must be referred for medical evaluation. If this is reasonable, an attempt must be made to accommodate the employee. The employee must be afforded the right to refuse, if the refusal is based on bodily integrity, religion, belief or opinion.
Refusal and Dismissal
Employers cannot fire anyone without doing due diligence. In a case of refusal, the employer must counsel the employee. The necessary medical evaluations must be done. If an employer is satisfied with this refusal, the employee must be accommodated. That would mean working off-site and/or from home. The controversy around mandates has been with those who refuse on constitutional grounds. The constitution is not absolute and in some cases may yield to the rights of others. Mandatory vaccination may not be justified where a worker is hardly in contact with anyone and works from home etc. It may be justified where a worker is exposed to many people on a daily basis.
Dismissal is a last resort. The employer should modify and adjust the environment. This includes working off-site, from home, outside of normal work hours, and wearing a N95 mask. If none of these are viable the employer can consider dismissal in terms of incapacity to do one’s job. This involves the employer informing the employee of their intention to dismiss them. Employers have to do risk assessments and accommodate employees who refuse vaccinations