The already unchartered waters of mandatory vaccination policies in the workplace have now been muddied even further.

Employers are already expected to jump through a myriad of procedural hoops, as envisaged by the Direction on Occupational Health and Safety Measures in Certain Workplaces, to justify the implementation of a mandatory vaccination policy.

Thereafter, employers are expected to consider the lawfulness of constitutional infringements, a task that should fall to the courts, and then attempt to reasonably accommodate any employee objecting to being vaccinated.

Should the employer not be able to reasonably accommodate an employee, it must then find a fair, hitherto unprecedented, reason to terminate the services of such employees, within the already tangled web that is labour law legislation.

To further complicate matters, the recently gazetted amendments to isolation protocols will make it infinitely more difficult for employers to achieve any of the above.

In terms of the new isolation protocols, individuals who test positive for Covid-19, but who are asymptomatic, are no longer required to isolate at all, and are not required to stay away from the workplace. No distinction is made in this regard between vaccinated and unvaccinated individuals.
  Therefore, it would be exceedingly difficult for employers to argue that employees must be vaccinated in order to ensure a safe working environment, or that dissenting employees cannot be accommodated, in a scenario where government has indicated that neither vaccination nor isolation, is required to manage the Covid-19 public health risk.

An unvaccinated, Covid-19 positive employee, who is deemed to be safe to interact with the general public in crowded shopping malls, restaurants and bars, must surely also be safe to perform his or her duties in the workplace.

It would be a very brave employer indeed who would take on such a venture.