Business owners in SA, crippled by Covid-19 lockdowns and desperate to protect their dwindling operations, face a growing dilemma over vaccination policies in the workplace.
Debates are raging over whether workers may reasonably refuse to be inoculated, and if employers can discipline them for refusing.
With the efficacy of the AstraZeneca vaccine in doubt, the government stating that no-one will be forced to be vaccinated and the constitution guaranteeing religious and cultural beliefs and bodily integrity, the debate over how to protect business operations is growing.
Aadil Patel, national employment department head at Cliffe Dekker Hofmeyr attorneys, which has researched mandatory vaccine policies, said: "You cannot be dismissed for misconduct simply because you don't want to take the vaccine."
He said for companies to make vaccines mandatory they must overcome numerous challenges, including obtaining union buy-in. "Crucial to the process is companies must distinguish between existing and new employees. With existing employees, companies must obtain consent for a mandatory vaccination policy introduction as it changes conditions of employment.
"If a majority trade union is in the workplace, employers could conclude an [inoculation] agreement with the union which would be extended to all employees regardless of whether they were unionised or not.
"But with no trade union, companies need every employee's consent. That's because employment is done on an individual basis." He said for new employees, a mandatory vaccine policy could be introduced, "but it is not advisable".
— You cannot bedismissedbecause youdon ’t want totake thevaccine
Patel said companies have a duty to ensure a safe working environment, but a lot about vaccines is still unknown. "Which vaccine must be taken, what is the vaccine's efficacy, who will pay for it and how does one address an employee's reasonable refusal to be inoculated because of cultural, religious and health rights? These are all questions that must be answered. Businesses must also get around the government's position that vaccines are not compulsory.
"If employees can work from home, or work safely by wearing masks and social distancing, then it's even more difficult to enforce such policies.
"Also, while employees need to produce sound evidence for their refusal, employers must have evidence showing why, for operational reasons, inoculations are reasonable."
Clifford Levin Attorneys associate and labour lawyer Avi Niselow said for disciplinary action to be instituted it would come down to how a mandatory vaccination policy is implemented. "If it's implemented unilaterally, with employees having no input and no union engagement, employers would find it difficult to discipline workers."
Key to the debate are a person's constitutional rights, and whether they can be limited fairly, Niselow said.
There are, however, options open to employers. "An option could be if an employer who runs a geriatric home, medical facility or school requires their employees to be inoculated for the safety of those they work with.
"If the employee refuses, it's possible, based on the employer's operational requirements, that retrenchment processes could be instituted. The employer could argue the employee is endangering patients."
But, Niselow said, to simply dismiss would be difficult. "The constitution ensures religious and cultural freedoms and bodily integrity. It would be difficult to fire an employee on the basis that their refusal is grossly unreasonable, especially if they have the evidence to back their refusal."
Council of Muslim Theologians secretary-general Ebrahim Bham said science and medicine contribute to the advancement of general welfare.
"It is not Islamic to be passive by not seeking the means through which the Almighty can provide ease in the form of protection and cure," he said.
"The benefits that will accrue from successful immunisation campaigns of efficacious and safe vaccines are recognised."
Bham said, however, that there is a sense that the vaccine development process and trials have been rushed, "giving an impression profit has been placed ahead of efficacy and safety".
"Our role is to recommend vaccines in line with permissibility according to Islamic law. The council is engaging medical experts to evaluate such compliance among the vaccines."
Professor Karen Milner, South African Jewish Board of Deputies Gauteng chair, said the board encourages their community to be inoculated in line with the government's rollout plan.
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