Companies within their legal right to effect mandatory vaccination

8 October 2021 by MARLENY ARNOLDI

Several of the country’s leading companies, including Discovery and Sanlam, have announced their intention to introduce mandatory vaccination policies within their organisations, but the debate continues about whether this is the right strategy. 

Business for South Africa (B4SA) on October 8 assembled a panel of experts and business leaders to explore the legalities of mandatory vaccination, the official position of organised business, and share insights generated by companies who have adopted these policies.

Business for South Africa (B4SA) on October 8 assembled a panel of experts and business leaders to explore the legalities of mandatory vaccination, the official position of organised business, and share insights generated by companies who have adopted these policies.

Business Unity South Africa CEO Cas Coovadia opened the discussion by pointing out the context of declining vaccine demand, which was ironic now that supply constraints have been resolved.

Close to ten-million people are fully vaccinated in South Africa, but all the age groups are plateauing well before targets. To achieve the 70% coverage, or 28-million first doses of vaccines, by December 16, an average of two-million doses have to be administered a week, or 350 000 doses a day.

This compares with a current average vaccination rate of 200 000 doses a day over the last four weeks.

Coovadia said longer-term vaccination demand depended on the success of demand generation strategies, cohorts opening up and mandatory vaccination initiatives.

VACCINE LEGALITIES

Law firm Bradley Conradie Halton Cheadle partner Halton Cheadle pointed out that, firstly, no right was absolute and that Section 36 of the Constitution states that a human right may be limited if the purpose is sufficiently important and its effect is proportionate.

Secondly, with people often citing religious reasons to warrant not getting the jab, Cheadle said, although the right to religion or belief was often raised as being infringed in the debates on mandatory vaccination, the right itself was “the free exercise of religion or belief”; however, a vaccination mandate does not infringe the exercise of religion or belief.

Other rights often cited are unfair discrimination. Cheadle unpacked this issue, saying that, for the discrimination argument to be valid, it has to be unfair. He said the arguments raised in support of the limitation of the right to bodily integrity apply equally to discrimination. “Discriminating against those not vaccinated is not unfair.”

Further, in terms of the Occupational Health and Safety Act, Cheadle remarked that mandatory vaccination speaks to reasonably practicable steps to eliminate or mitigate any hazard or potential hazard to the safety or health of employees.

The Mine Health and Safety Act also specifies that employers must maintain a healthy and safe working environment, as far as reasonably practicable.

Cheadle noted that vaccination was pre-eminently a reasonably practicable measure. “The science is clear that the Covid-19 vaccines are effective and reduce the risk of serious illness and fatalities.

“The purpose of both Acts is to protect the health and safety of workers. It is proportional, given that vaccination is not a particularly invasive health intervention and that there are not less invasive means as effective as vaccines.”

The Direction on Occupational Health and Safety Measures in Certain Workplaces, which was gazetted on June 11 this year, endorses the employer’s right to impose mandatory vaccination; however, it requires extensive information to be shared, extensive consultation to be undergone and employees who refuse to be vaccinated need be reasonably accommodated.

The direction is silent as to dismissal and, therefore, the Labour Relations Act (LRA) will apply, Cheadle pointed out.

Speaking about the consequences of refusing to vaccinate, Cheadle said the general contractual rule is that if employees tender their services and the employer does not accept their tender, the employer is not required to pay the employees.

The exception to the rule is that the tender must be in accordance with the employer’s rules as to dress, sobriety and others and, amid the pandemic, wearing a face mark, or showing a vaccination certificate.

Employers can refuse to allow an unvaccinated employee to enter the workplace without attracting any liability for pay.

The LRA permits employers to dismiss employees for valid reasons after a fair procedure, in this case if someone is not obeying a health and safety rule and endangering others by refusing vaccination.

It can also be justified as an operational requirement for the job.

“Mandatory vaccination is a highly charged subject as a result of misinformation and, whatever the law permits or requires an employer to do, the answer is not only in law but in human resource management.

“These members must seek to persuade employees with a minimal amount of disruption, and correct information about the vaccine should be shared before mandatory policies and vaccine refusal consequences are implemented,” Cheadle advised.  

COMPANY POLICY

Discovery chief commercial officer Dr Ron Whelan unpacked some considerations for mandatory vaccination, which the company is implementing from January 1, 2022.

Mandatory vaccination is becoming commonplace across many countries, including Australia, Wales and France, as well as across companies such as Google, Facebook, Netflix, Sanlam, Walmart, Disney, Morgan Stanley, BlackRock, Curro, Mediclinic and Life Healthcare.

Discovery weighed the issue of vaccination against the company’s moral, social, ethical and legal obligations, culture, purpose and values and found it aligns well.

Its mandatory vaccination policy also makes provision for an objections and exceptions process.

The company’s vaccination policy decision has been motivated greatly by the number of deaths experienced in the country and at company level as a result of Covid-19.

“There is compelling evidence globally that vaccines are safe and effective. It has been found that the vaccine is more than 90% effective in reducing death rates from the virus and between 50% and 80% effective to prohibit infection in the first place,” said Whelan.

He added that a fourth wave of infections is projected to hit early in December and South Africa can avert 25 000 deaths by vaccinating 60% of the adult population.

“There is a pressing need to ramp up vaccination numbers.”

Discovery is a firm believer that all employees have rights, not only unvaccinated employees, as do employers and businesses. The company also believes those rights are not absolute and employers have a legal and moral obligation to provide a safe workplace, including protection from hazardous biological agents.

Unfair discrimination can be avoided through an objections and exceptions process and reasonable accommodation where required, Whelan noted.

Discovery is making a concerted effort to balance the individual rights and liberties of all employees with the operational and broader stakeholder obligations of the business.

Severe adverse vaccine events are occurring in one per million cases, those are the same odds as being struck by lightning.

The risk of death by car accident in South Africa is 233 times higher, dying as a result of murder is 400 times higher, and dying as a result of Covid-19 is over 1 800 times higher, than the risk of getting a severe adverse reaction from the vaccine.

Nonetheless, Discovery makes provision to cover those employees that may suffer from adverse events as a result of vaccination.

Life Healthcare Group CEO Pete Wharton-Hood shared similar sentiment, saying everyone has the right to choose, but it does not free people from the consequence of that choice.

In his experience, those vaccinated are three times less likely to infect others and about ten times less likely to die as a result of Covid-19. He mentioned that nearly all hospitalised Covid-19 cases are unvaccinated individuals.

B4SA chairperson Martin Kingston said as long as the population remained unvaccinated for the most part, the South African economy would continue to suffer ramifications.

Sanlam market development executive Karl Socikwa echoed the other statements, adding that the company does recognise some employees will have valid grounds not to receive the vaccine and these will be considered accordingly. They will then, however, need to be subject to regular Covid-19 testing.

He admitted on behalf of the panel that the mandatory vaccination process will not be easy, but that it was necessary.

Sanlam and Discovery’s mandatory vaccination policies become effective from January 2022.

Source: Engineering News at https://www.engineeringnews.co.za/article/companies-within-their-legal-right-to-effect-mandatory-vaccination-2021-10-08/rep_id:4136