By Teboho Mokoena

The issue of mandatory vaccination in the workplace has been quite topical recently.

The burning question has been whether employers are in a position, based on the directives issued by the Minister of Labour, to compel employees, where circumstances permit, to undergo mandatory vaccination.

The ministry issued a clarification directive dated 14 June 2021.

In terms of the consolidated occupational health and safety direction, employers are required to undertake a three-step process before arriving at a decision whether to make vaccinations compulsory or not.

The following are excerpts from the directive:
• “Firstly, it must make that assessment taking into account the operational requirements of the workplace. This means that the Direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
• Secondly, if the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which of its employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities.
• Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees”

Upon reading the above excerpts from the directive, it becomes abundantly clear that an employer may, based on the risk assessment conducted in their particular workplace, compel certain employees to undergo mandatory vaccination.

That said, it is my considered opinion, that this remains a tricky matter. This is so because, even in the event that vaccination becomes mandatory in a particular workplace, those employees may still lodge objections based constitutional or medical grounds.

Constitutionally, such employees can cite section 12(2) and section 13 of the constitution respectively. Section 12(2) talks to the rights of citizens to bodily and psychological integrity, which includes the right to make decisions concerning reproduction, to security in and control over their body and not to be subjected to medical or scientific experiments without their informed consent.

Section 13 guarantees one’s rights to freedom of religion, belief and opinion. Medically, among others, employees may state in their objections that they could potentially experience allergic reactions to Covid-19 vaccines.

The question is: What becomes the most acceptable route going forward for all parties?

It in this regard, it is critical to note that the initial directive, as well as the recent clarification note, continue to emphasise the importance of parties i.e., employers and employees finding an amicable solution to this impasse.

In this regard, the directives raise, correctly so, the primacy of collective agreement as a plausible solution to resolve this issue.
But we must always bear in mind that, even in workplaces where parties find each other and conclude collective agreements which would then pave way for mandatory vaccinations, there is still the real possibility that some of those employees covered by such collective agreements could still refuse to undergo mandatory vaccinations, citing the afore-mentioned grounds.

I would go as far as even saying that I cannot rule out instances where unions do not insist on including, in such collective agreements, the right by employees to object based on the grounds already stated above.

Simply put, I cannot imagine a scenario where a union enters into a collective agreement which would take away rights which are enshrined in the constitution.

My measured assessment is that it will ultimately fall on to the courts to provide a way forward in this regard.

Section 36 of the Constitution provides for the limitation of constitutional rights in so far as it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and having regard to: (i) the nature of the right; (ii) the importance of the purpose of the limitation; (iii) the nature and extent of the limitation; (iv) the relation between the limitation and its purpose; and (v) less restrictive means to achieve the purpose.

In Minister of Safety and Security and Another v Gaqa [2002] ZAWCHC 9, the court relied on the public interest and applied a balancing act of rights to conclude that the respondent was forced to undergo surgery, albeit that he never consented to surgery.

Similarly, in the case of Minister of Health of the Province of the Western Cape v Goliath and Others 2009 (2) SA 248 (C), the court compelled the surviving respondents to receive treatment for tuberculosis against their will.

These two cases are a clear demonstration that there are instances where constitutional rights of individuals may be limited when viewed against the collective interest of the public.

It is now up to the Constitutional Court to provide much-needed clarity on this matter.