The employer has an almost insurmountable mountain to climb should it wish to introduce a policy of mandatory vaccinations in the workplace.
The overwhelming regulatory requirements are seemingly disregarded by some employers (following the example of various corporates) announcing that they will simply be enforcing mandatory vaccinations on all their employees.
Before dealing with the obstacles which an employer needs to overcome, it is necessary to, once again, state NEASA’s position regarding this very contentious issue:
More on NEASA's view here:
The directions issued by the Department of Employment and Labour (DEL), which seemingly permit the implementation of mandatory vaccinations in the workplace, as well as the notice by the Compensation Fund Commissioner (‘the notice’), regarding compensation for employees who suffer injury, illness or death as a result of receiving a mandatory vaccine, impose stringent regulatory requirements on employers.
As it currently stands, the implementation of a mandatory vaccine policy in a workplace may well be an unjustifiable infringement of the constitutional rights to bodily integrity and freedom of religion, opinion and belief.
So where does this leave an employer?
The abovementioned issues require an employer, contemplating the implementation of a mandatory vaccination policy, to answer a number of questions it may be faced with and which, if not answered satisfactorily, may well expose the employer to a number of claims by employees.
The first question an employer should be asking may not be a legal one, as it deals with the morality of imposing a vaccine on a person against their will. It is clear from the directions from DEL, as well as the notice, that an employer may not force an employee to receive a vaccine against their will. However, the fact that an employee is forced to elect between receiving a vaccine or potentially being dismissed, effectively constitutes the enforcement of a vaccine.
Each employer should therefore answer the question as to whether it believes that it is necessary, required and morally justifiable to interfere with the freedom of choice of an individual by imposing a mandatory vaccination policy?
The second question an employer should ask is whether it has complied with the requirements of the direction for the implementation of a mandatory vaccination policy.
This question has to be answered within the broader context of the original Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, as the introduction of mandatory vaccination policies is simply an amplification of these directions, as well as the requirements of the Labour Relations Act, Employment Equity Act and the notice.
Therefore, in order to successfully implement a mandatory vaccination policy, an employer will have to answer the following questions:
o is there a law of general application permitting the infringement of rights? (it is submitted that the direction does not constitute a law of general application as it is very limited in scope);
o the nature of the right;
o the importance of the purpose of the limitation;
o the nature and extent of the limitation;
o the relation between the limitation and its purpose;
o less restrictive means to achieve the purpose; and
o all other relevant factors.
NOTE: The directions require that the risk assessment and plan must have been completed within 21 days from the date of gazettal (21 June 2021). There is no indication as to the consequences of non-compliance with this timeline or whether an employer is still permitted to do so after expiry of said timeline.
The recent notice issued by the Compensation Fund Commissioner indicates that the Compensation Fund will only compensate an employee who suffers injury, illness or death, as a result of receiving a mandatory vaccine, if the employer has complied with all that has been set out above.
It is therefore clear that an employer who introduces a mandatory vaccination policy runs the following risks:
Employers should be aware that compliance with the directions is a massive and difficult task to be conducted within a, thus far, undecided area of labour law.
The implementation of a mandatory vaccination policy, and in particular, one that relates to all employees, seems to be a very dangerous road to take.