Can employers dismiss their employees for refusing to take the vaccine?

With the rollout of the Covid-19 vaccination picking up momentum, the question of whether to vaccinate or not is top of mind for some. The vaccination is currently not mandatory. A decision not to get vaccinated against Covid-19 may, however, have far-reaching consequences both in everyday life and in the workplace. Many businesses may be wondering whether they may insist on their employees getting vaccinated

On 11 June 2021, The Department of Employment and Labour published the updated COVID-19 Consolidated Direction on Occupational Health and Safety measures in certain Workplaces (OHS Directives) which came into effect on the same day.

According to the OHS Directives, employers have a discretion to consider whether mandatory vaccination may be appropriate for some or all of its employees in the workplace based on their operational requirements. The OHS Directives gave employers a strict deadline to implement a COVID-19 Mandatory Vaccination Policy (“Vaccination Policy“). Employers had 21 days from the date that the OHS Directives came into effect, to implement a Vaccination Policy in which it details the circumstances in which employees may be required to be vaccinated and the consequences of deciding against vaccination.

Section 3(1)(a)(ii) of the OHS Directives provided that every employer who employs 10 or more employees must undertake a risk assessment. Taking into account the operational requirements of the employer, the risk assessment required that the employer determine whether it intends to make vaccination mandatory. The same section also identified the type of employees that must be vaccinated, being employees who are at risk of transmission of the COVID-19 virus through their work, or their risk of severe COVID-19 disease or death due to their age or co-morbidities, or in circumstances where these Employees interact with members of the public at their workplace.

The OHS Directives also provide guidelines with which employers must comply. These guidelines include that every employee identified in terms of Section 3(1)(a)(ii) had be notified of the:

• obligation to be vaccinated,
• employees’ right to refuse vaccination on constitutional or medical grounds; and
• opportunity for the employee, at the employee’s request, to consult a health and safety representative, a worker representative or a trade union official.

Should an employee refuse to be vaccinated on constitutional or medical grounds, the Employer should:

• provide counselling to the employee, if requested and allow the employee to seek guidance from a health and safety representative, a worker representative or a trade union official;
• refer the employee for further medical evaluation, should there be a medical contraindication for vaccination; and
• if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

Reasonable accommodation means any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in their employment. This might include an opportunity for the employee to work offsite or at home, or in isolation within the workplace such as an office or warehouse, or working outside of ordinary hours.

Employees’ risks in refusing to take the vaccine  

As an employee, the biggest risk in refusing the vaccine is the possibility of losing your job. Should employers implement a Vaccination Policy, and an employee refuses to take the vaccine (even though on valid constitutional or medical grounds), and the employer is unable reasonably to accommodate the employee, the employee may be dismissed as a result of the employer’s operational requirements. The employee has a right to approach their trade union or attorney, and to refer the matter for unfair dismissal to the CCMA.

Employers should approach dismissals relating to employees’ refusal to take the vaccine with caution but, we think, pragmatically and with their responsibilities as corporate citizens not to endanger the health of other employees and customers at top of mind. From an employment law perspective, there is currently some uncertainty with regards to the matter, as it is currently untested, although some big corporates such as Discovery have already signalled their intention to implement mandatory Covid 19 vaccinations for employees.

Our Constitution makes provision for every person in South Africa to have the right to make their own choice regarding medical procedures and it may prove difficult for employers to get past certain Constitutional protections afforded to everyone in a democratic country if they wish to dismiss employees for refusing the vaccine.

Our Constitution guarantees 27 constitutional rights, including the right to bodily integrity. A person is free to decide whether to refuse medical treatment or refuse to undergo surgery for any reason, whether for religious or health reasons. Similarly, an individual is free to refuse to be vaccinated. But no right is absolute and if there is a justifiable reason or compelling public interest in doing so, virtually all rights are capable of limitation.

What is of importance in determining whether a limitation is justifiable, is whether the importance of the purpose of the limitation outweighs the interests protected by the right and, if so, whether the limitation is the least restrictive means to achieve that purpose.

In the workplace scenario, the purpose of the limitation would be to protect other employees and the public against death and severe disease, to fulfil one’s duty under the social compact not to cause harm to others unnecessarily, as well as to prevent further infections, thus reducing the risk of ongoing mutations of the virus into variants of concern that may impact on vaccine efficacy. If employees are, for example, obliged to work in close proximity to one another, such as at a call centre, or they are in contact with members of the public on a regular basis, an employer may well be justified in insisting that any such employee gets vaccinated. As stated above, each case would have to be considered on its facts. There cannot be a one size fit all approach.

The period provided in the OHS Directives for the implementation of a Covid-19 Policy has come and gone and we doubt that all or even most employers complied in time. Whether the employer’s failure to implement such a policy within the 21 day period precludes an employer from now doing so is unclear. We don’t, however, believe that this would render any Covid-19 Policy subsequently implemented, unlawful or unenforceable.

Employers will need to evaluate each case on its own facts and to obtain legal advice, both in relation to the implementation of any such policy and when considering dismissing an employee who refuses to take the vaccine.

Greer Penzhorn and Ali Sonday
FAIRBRIDGES WERTHEIM BECKER