An interesting question that is arising in the South African employment and labour law is space, is whether or not an employer can compel its employee’s to have a COVID vaccination as a prerequisite for being in the workplace?

An employer’s primary duty of care towards its employees is derived from the Occupational Health and Safety Act 85 of 1993 (“OHSA”) (and in the case of Mines, the Mine Health and Safety Act 29 of 1996). Section 8 of OHSA outlines an employers duties towards it employees which includes, inter alia:

• providing and maintaining, as far as is reasonably practicable, a working environment that is safe and without risk to the health of their employees;

• taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

• enforcing such measures as may be necessary in the interest of health and safety at work of its employees.

The starting point when considering this question is the South African Constitution and Bill Rights which provide that each and every person has certain fundamental rights which includes, inter alia, right to bodily integrity. All rights contained therein can be limited, however such limitation has to be justifiable and reasonable in the circumstances. The obvious motivating factor for employers to have a mandatory vaccination policy would be to protect their employees health in the workplace thereby complying with the provisions of OHSA and combating the spread of COVID. However, there may be instances where an employee has valid reason/s for wishing to refuse and/or object to having a COVID vaccination, such as having comorbidities, etc. In the circumstances, in order to determine whether any limitation is justifiable and reasonable, an employer would need to conduct a detailed assessment of their workplace taking into account all the relevant facts and circumstances pertaining thereto. As a result, such a determination will have to be made on a ‘case by case’ basis by each and every single employer, as this is not a ‘one size fits all’ senario.

In addition to the above, if an employer wishes to introduce a mandatory vaccination policy this would have to be by way of agreement between the employer and its employees, as the introduction of such a policy would amount to a change in the employees’ terms of employment. In the absence of an agreement, such a policy would amount to a unilateral change in the terms of employment which would be an unfair labour practice.

It is clear that employers have various hurdles to overcome before they can simply implement a mandatory vaccination policy in their workplace. These hurdles include various considerations and rights which have to be investigated, considered, weighed and balanced. It will be interesting to see if the South African Government or International Governments will weigh in on this matter.

Ultimately and undoubtedly, this question will have to be determined by the South African Courts. As a result, employers should be cautious when making any decisions in this regard.