Workplace experts grapple with vaccine mandate dilemma

After the Congress of South African Trade Unions (Cosatu) called on employers to address the issue of workers being reluctant to get vaccinated, experts said workplace vaccine mandates did not mistreat workers because companies had a legal obligation to protect and safeguard all its employees.

Labour law consultant Tony Healy said some environments allowed for employees to work remotely, and to increase social distancing and ventilation, but in other environments it was not possible, which increased the potential of those employees being dismissed.

“There are a number of things employers could do, and they are contained in the 11 June 2021 department of labour directive,” Healy said.

“That would include restructuring the workplace if they can, and/or restructuring the employees’ duties so that it reduces the potential for infection,” he said. “In some environments it would mean it is easier for employees to work from home.”

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Healy said in the case of Goldrush, which was a case in point in many instances, things were not as simple as just an employee getting dismissed because they were not vaccinated.

“The employer ticked all the boxes, they did a risk assessment, they had an appeal procedure, they offered negative testing options; but this employee just flatly refused on the basis of her constitutional rights,” he added.

“It’s only the beginning and still at the CCMA level. There are many higher courts that are going to have to review and look at appeals. However, this shines a light into how the CCMA is going to view things going forward.”

Meanwhile, public health lawyer Safura Abdool Karim said the most effective way to address such matters was for all workplaces to abide by the ministerial directive on workplace vaccinations, which required employers to undertake a needs-based assessment of their workplaces.

“And to engage with workers and unions on their vaccination policies. This includes providing reasonable accommodation for those who have not been vaccinated and may include exemptions for medical, religious, or constitutional reasons,” she said.

Abdool Karim said companies were mandated to create a safe working environment for their employees and a safe working environment could mean mandatory Covid vaccinations, as companies had a legal standing if they should choose to dismiss employees who refused to get vaccinated.

Cosatu’s parliamentary coordinator, Matthew Parks, said employers should address employees’ concerns because once dismissals were introduced, it would increase tension in the workplace.

“We appreciate that change is difficult, but I think our approach as organised labour is to encourage everybody to do it,” Parks told the SABC. “This is not just about workers, all of society needs to go out and get vaccinated.”