Why vaccines should be encouraged in the workplace, but rarely enforced
The distribution of a COVID-19 vaccine is seen as a fundamental component to ending the pandemic. However, mandatory vaccinations in the workplace should be treated with caution by all employers. As it stands, there is currently no legislation in South African law that specifically requires an employee to be vaccinated against COVID-19. As a point of departure, the Occupational Health and Safety Act mandates all employers to provide and maintain a working environment that is safe and without risk to the health of their employees. In the same breath however, the National Health Act states that a health service, which includes the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat the person will result in a serious risk to public health. Invariably, the question that now arises is whether an employer may, after considering these two pieces of legislation, enforce a compulsory vaccination policy in the workplace. The South African Constitution states unequivocally that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over one’s body. The Constitution, however, also limits the right to bodily and psychological integrity to the extent that it is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom. In essence, an employer’s obligation to ensure a safe and healthy working environment must be balanced with the employees’ constitutional right to bodily integrity when determining whether there are justifiable grounds to limit the right. Furthermore, section 5(2) (c) of the Labour Relations Act bars an employer from prejudicing an employee for the employees’ failure or refusal to do something that the employer may not lawfully permit or require the employee to do. Similarly, section 187(1) (f) of the Labour Relations Act prohibits dismissals that discriminate against employees based on their religion, conscience, belief or culture. A similar prohibition is also contained in section 6(1) of the Employment Equity Act, which is also stands as a safeguard for employees. In light of the aforementioned legislative framework, a court of law may be hesitant to uphold an employer’s decision to dismiss an employee for refusing to subject themself to a COVID-19 vaccination. Therefore, it stands to reason that, an employer has an extremely limited scope to enforce a vaccination policy in the workplace. A challenge that an employer will have to face is the ability to provide the court with compelling reasons that, under the circumstances, the rights of the employee to refuse the vaccine are outweighed by other constitutional rights such as the right to a safe environment or the right to life by way of an example. In conclusion, there is no current legislation in South Africa that permits an employer to enforce a vaccination policy in the workplace or to dismiss employees for their refusal to be vaccinated. Therefore, as a general rule, an employee may not be dismissed for his or her refusal to be vaccinated. Employers do, however, have a limited scope to deviate from this general rule and may implement a vaccination policy in the workplace, provided that compelling reasons for its implementation exist. Employers are however, advised to do so with caution and to obtain expert advice before the implementation of such policies. Employers are encouraged to motivate employees to agree to be vaccinated through means of education as opposed to coercion. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Medical and psychological testing: Is passing a requirement?
As a point of departure: according to section 7 and 8 of the Employment Equity Act, 55 of 1998 (“the Act”), employers are prohibited from performing medical- and psychological testing, or any other similar assessments, on employees. Employees, though, are often required to pass medical or psychological testing before they are considered for a certain vacancy. Such tests will only be lawful when legislation requires or permits the testing or when the employer can justify the reason for the testing. According to section 7 of the Act, the employer may justify the prerequisite of a medical test in light of medical tests, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the specific job. While psychological testing or any other similar assessment may only occur when the results thereof have been scientifically shown to be valid and reliable, when such testing can be fairly applied to all employees, and lastly, that such tests will not bias any employee or group. Furthermore, section 9 of the Act states that “employee” includes an applicant. Therefore, the aforesaid provisions are applicable to both employees that are currently employed by an employer and the applicants who are currently seeking employment. So, what happens when the employer does not make it clear why the medical, psychological or any other similar assessment is required? In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC), the Labour Court was given the task of deciding whether a clause, in the employment contract of an employee suffering from bipolar disorder, which gives the employer the discretion of having the employee undergo medical testing whenever the employer deemed it necessary, was lawful. A clause in the employee’s contract provided: ‘The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.’ The employee, however, refused to undergo the said testing and one of the main issues which the Labour Court had to decide on was whether the provision was enforceable; and whether her dismissal for failing to submit to a medical examination was automatically unfair in terms of s187(1)(f) of the Labour Relations Act (LRA) 66 of 1995. The court held that the section provides no exception based on the consent of the employee in an employment contract and that medical testing will only be permitted in the circumstances set out in section 7 or 8 of the Act, which did not find application in this case. The court also found that the instruction to undergo psychiatric testing on account of the employee’s bipolar condition amounted to unfair discrimination in terms of section 6 of the Act. The dismissal of the employee for refusing to undergo a psychiatric evaluation to determine her fitness to work was found to be an automatically unfair dismissal in terms of s187(1)(f) of the Labour Relations Act, 66 of 1995. Employers are, however, still able to use arguments such as “employment conditions” or “inherent requirements of a job”, to “cover up” certain tests. This will result in applicants being rejected or the results of such tests being used as grounds for dismissal. To make sure whether such conditions or requirements will justify the rejection or dismissal, it is important to look at the nature of the specific job in question, the general practice and the history of the employer’s employment conditions and inherent requirements of the job to evaluate whether the decision was fair. Employers are only allowed in limited circumstances to require that employees undergo medical- and psychological testing or any other similar assessments. Should there be a clause in the employment agreement which provides for such testing, which was signed by the employee, it does not necessarily mean that such testing will be lawful. It is important to note whether such a clause is in line with the Act. Reference List: Employment Equity Act, 55 of 1998. EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC). Labour Relations Act, 66 of 1995. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)