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CAN EMPLOYERS FORCE EMPLOYEES TO BE VACCINATED AGAINST COVID?
XYZ Co. manufactures clothing. The factory conforms to all Lockdown health requirements including ensuring that all manufacturing machines are placed two meters apart. However, it requires two employees at the same time to complete certain operations on all of these machines which, at times, brings these employees within one meter of each other. A health inspector instructs that the employer must either stop using these machines or ensure that all factory employees are fully vaccinated. The employer completes a highly comprehensive and intensive campaign to educate and motivate its factory employees to get vaccinated and informs them that refusal to vaccinate could result in action that might result in dismissal. The employer arranges for a vaccination team to come to the factory but three employees refuse to be vaccinated on the grounds that section 12 of SA’s Constitution gives them the right to freedom of person. Is the employer, after trying in vain to accommodate these employees, entitled to dismiss them? If so, on what basis and through which legal procedure?Yes – the employer would in my opinion be entitled to dismiss them. At the moment, there’s no specific law which expressly permits or prohibits a mandatory vaccination rule. Nor has there been a test case in the CCMA or the Labour Court on whether and in what circumstances, a dismissal for refusing to comply with a mandatory rule would be fair or unfair.
However, the trend towards science-based mandatory vaccinations at national and global levels will undoubtedly accelerate. So it’s reasonably safe to bet that the weight of public interest and policy will far outweigh the weight of individual constitutional rights. They are not unlimited.
An employer can legitimately introduce a mandatary vaccination rule. This requires a proper OHSA workplace risk assessment, reasonable measures to accommodate vulnerable employees and consultation with relevant stakeholders. If so, the rule would be reasonable in the interests of the greater good. And it would justify dismissal of employees who refuse to take the jab.
Individual resisters will increasingly be marginalized from social events, public gatherings and the workplace. In the end, they will have to bear the consequences of their personal choices.
uoesy statute is is an opinition
Employers can never directly force employees to take the vaccination. However, employers can make it mandatory for employees not to continue in their jobs if they refuse to vaccinate. This could mean dismissal and will be subject to employer policy which must be carefully consulted on before implementation. There are various factors that have to be taken into account before consultation can be completed.
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