COVID-19 has had a tremendous impact on our economy. Now that a vaccine is finally becoming reality it is not surprising that many employers are looking towards the vaccine as a possible way of bringing normality to their businesses.
The question that everyone is asking is; can employers insist that their employees are vaccinated against COVID-19?
The short answer is; No, except in exceptional circumstance.
There simply is no general legal precedent on which employers can rely on which to force their employees to be vaccinated.
There are two exceptions where such a right may arise:
- Where there is a Legislative requirement for an employee to be vaccinated, or
- Where there are legitimate operations required for an employee to be vaccinated.
As far as we are aware there is currently no South African Legislation that requires an employee to be vaccinated against COVID-19. In light of the State Presidents recent announcements where he stated clearly that “no person will be forced to take the COVID-19 vaccine” we also don’t expect any to be promulgated.
There may be circumstances where employers have legitimate operational requirements for their employees to be vaccinated against Covid-19. These reasons will have to be carefully scrutinized on a case-by-case basis to determine their legitimacy.
The following example illustrates the difficulty employers will have to justify their operational reasons:
The healthcare industry is on the frontline of the battle against COVID-19 and as a result healthcare workers are at a high risk of contracting COVID-19. Notwithstanding this tremendously high risk, COVID-19 vaccinations for healthcare workers are 100% voluntary. No healthcare worker has been dismissed or retrenched because he/she refused to be vaccinated.
The World Health Organisation has also issued a statement where they indicate that they do not foresee countries making it mandatory for citizens to take the new COVID-19 vaccine.
Employers who are of the opinion that their businesses face such an extreme set of circumstances that it may be able to justify such an operational requirement are advised to consult their Labour Law advisors before taking any active steps in this regard.
SEESA clients are welcome to contact their nearest SEESA office for more detailed advice regarding COVID-19 vaccines in the workplace.