Mandatory workplace jabs should weigh up operational needs and workers' rights: legal expert

Employers who plan to implement mandatory vaccinations should conduct a risk assessment, says an expert in employment law. File photo.
Employers who plan to implement mandatory vaccinations should conduct a risk assessment, says an expert in employment law. File photo.
Image: SUNDAY TIMES/ ALAISTER RUSSELL

Employers who want to implement mandatory vaccinations at their workplaces should conduct a risk assessment and take the constitutional rights of employees into account.

This is according to Jose Jorge, a director and sector head at Cliffe Dekker Hofmeyr, who was speaking at the company’s annual employment law webinar on Thursday.

In June, labour minister Thulas Nxesi issued a directive regarding vaccination in the workplace. He said employers should find a “reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds”.

“The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business,” the communication reads.

Jorge said: “We are sitting with a number of our clients who intend to implement mandatory vaccination. As an employer, you have to conduct a risk assessment and decide if you are going to make vaccination mandatory.”

Looking at their operational requirements should help employers decide if they want to make vaccination mandatory, Jorge said.

“If you are in an environment where there is less social distancing, it [mandatory vaccination] is something you should consider. If you operate in health care and in an environment where you can’t social distance, then it is something you might want to consider,” Jorge said.

He said mandatory vaccination might not be required where employees are office bound.

A risk assessment, Jorge said, involves identifying those employees who, because of the work they do, are at a high risk of Covid-19 transmission and must be vaccinated; and those who have comorbidities.

“You have to develop a plan and outline the measures you can implement in respect of vaccinations. You must consult with trade unions and the health and safety committee.

“You have to identify the employees who are at risk and make a call on whether you want to implement mandatory vaccination.”

It was, however, important when an employer developed their plan to take into account the rights of employees to bodily integrity and the right to freedom or religion.

“Inform employees about the dangers of Covid-19 and the benefits of the vaccines and their side-effects. You have to assist employees to registers on the EVDS,” Jorge said.

In cases where employees refuse to vaccinate, employers should counsel them, and where impossible to convince them to vaccinate, take steps to accommodate the worker.

“If it’s medical, it’s necessary to take steps to accommodate the employee by allowing them to work in an isolated environment [within the office] or remotely.

"The complication is that you have so many competing constitutional rights. It’s a balancing act.”

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