Minister must withdraw ‘mandatory vaccinations’ guidelines, says business group

Business group Sakeliga is not happy with the new directions minister of employment and labour issued regarding vaccination in the workplace two months ago and has given him until Thursday to withdraw the policy direction for ‘mandatory’ vaccinations, and issue a press release to inform the public of the correct legal position regarding the right to constitutional integrity.

According to minister Thulas Nxesi’s press release issued on 14 June, employers should find a reasonable resolution that accommodates all parties, where employees refuse to be vaccinated for medical and constitutional reasons according to the new consolidated direction on occupational health and safety measures in certain workplaces.

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Employee rights

According to the guidelines a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business. The guidelines also refer to the constitutional right to bodily integrity and the right to freedom of religion, belief and opinion.

The Consolidated Occupational Health and Safety (OHS) Direction requires employers to include in their risk assessment if it intends to make vaccinations compulsory using a three step enquiry that firstly considers the operational requirements of the workplace.

According to the press release this means that every employer must take into account its general duties under the OHS Act to provide a working environment that is safe and without risk to the health of his employees and other people.

ALSO READ: Companies could legally fire you for not vaccinating

Identify which employees

Secondly, if employers decide to make vaccination mandatory, they must identify which employees will be required to be vaccinated, based on the risk of transmission or a risk of severe Covid-19 or death due to their age, or comorbidities. Not every employee poses such a risk, such as employees who do not come into close working contact with other workers or the public.

Thirdly, after identifying employees who are required to be vaccinated, employers must amend their plans to include measures to vaccinate those employees, taking into account the guidelines.

“It is critical to balance collective bargaining and the need to keep employees healthy and businesses running. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions,” said Thulas Nxesi, minister of labour and employment.

ALSO READ: What employers need to consider when talking about vaccinating workers

Sakeliga does not agree

Sakeliga says in its letter to the minister that the department’s press release that quotes Nxesi promotes the implementation of mandatory vaccination programmes by employers, while it seems that Nxesi thinks that employers are entitled to require mandatory vaccination of employees.

According to Sakeliga, it has been informed that certain employers, including state-owned entities, have now embarked on a process of requiring mandatory vaccinations of employees and independent contractors and that various mechanisms are used to compel employees to be vaccinated, including threats of dismissal or disciplinary penalties.

The letter makes it clear that Sakeliga believes that these practices are unconstitutional and constitute unfair labour practices and that the minister’s directions have not made it lawful for employers to institute mandatory vaccination programmes.

Not supported by law?

According to Sakeliga:

• the directions do not constitute a direction, regulation or law of equal application under the Disaster Management Act (DMA) or OHS Act, but a policy guideline that did not make it mandatory for employers to implement vaccination programmes
• the policy guideline explicitly recognises that employees and contractors have the right to refuse vaccination based on medical and constitutional grounds
• the policy guideline is, given its contents, oxymoronic as it clearly does not authorise or mandate any actual mandatory vaccination programmes
• neither the DMA nor the OHS Act has the power to authorise a gross infringement of bodily integrity or any similar programmes for mandatory vaccination
• there is currently no legislation of general application which would allow for the contravention of a person’s right to bodily integrity
• even if an employer could apply the OHS Act to a scheme of mandatory vaccinations, the act does not authorise employers to issue penalties for employees who refuse to comply with an instruction when relying on medical or constitutional rights
• it also does not override employers’ contractual employment obligations towards employees and does not authorise employers to issue penalties
• It also does not require that employers institute policies that are not reasonably practicable or possible in terms of the law and will not constitute grounds to terminate their services for failing to comply with employers’ instructions.

Public misinterpretation?

The letter states that Sakeliga supports voluntary programmes, but believes that the public has misinterpreted the guidelines on mandatory vaccinations and that its application will lead to gross infringements of the constitutional rights of employees and contractors in the corporate arena.

“The policy has in the last week caused significant legal uncertainty amongst employers and employees regarding the actual position of the law and creates a dangerous legal precedent distinctly undermining the constitutional rights of contracting parties.

“Despite our client’s doubts about the constitutionality of any mandatory vaccination programme, the current structure of the law simply does not allow for such programmes,” Sakeliga says in the letter.