I may not be (vacc)seeing you anytime soon, is it worth the shot?

12 Apr 2021

The advent of the Covid-19 vaccine has raised many complex questions in the workplace. One such question entails whether employers are entitled to require their employees to take the Covid vaccine, failing which employees will not be allowed to physically enter the workplace. Whilst there are mixed views on this issue, the prevailing view is that employers may not require their employees to take the Covid vaccine.

However, quite recently, countries such as the United Kingdom are reportedly considering whether to give Covid-vaccinated people certificates that allow entry into bars, hotels and swimming pools, with countries such as Israel, reportedly, having already implemented such a policy. This raises the further question of whether employers, without forcing employees to get vaccinated, may prevent employees from entering the workplace, or certain areas within the workplace, if they have not been Covid-vaccinated.

This question is given impetus by the obligation on employers, in terms of provisions of the Occupational Health and Safety Act 85 of 1993 (“OHSA”), to create a safe working environment for its employees and non-employees who may be directly affected by its activities.

In particular, sections 8 and 9 of the OHSA, place a duty on an employer to act proactively, as far as is reasonably practicable, to avoid any harm or injury to its employees and others. There is however no standard as to what is considered to be reasonably practicable. Each case must be determined on its own facts and circumstances. It has been held by our courts that this involves weighing different considerations ranging from risk evaluation and means of removing or avoiding the risk. However, the notion of “reasonably practical” is a variable one. Concerning health and safety measures, this test requires employers to (i) consider which measures may be reasonable in order to comply with their duties under the OHSA and (ii) to do what can be done to comply with OHSA, unless it is reasonable in the circumstances to do something less or, in extreme circumstances, more.

Our Labour Courts have previously been faced with considering and applying the above principles emanating from the OHSA. In the case of Pikitup (Soc) Ltd v South Africa Municipal Workers’ Union obo Members and others [2014] 3 BLLR 217 (LAC), after experiencing problems arising from drivers reporting for work under the influence of alcohol, the employer unilaterally introduced mandatory breathalyser tests for drivers and random breathalyser tests for other employees. Relevant to that case, in terms of regulation 2A of the regulations promulgated under the Machinery and Occupational Safety Act 6 of 1983, an employer is not to permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace. The intent of the employer was to refuse employees who were under the influence of alcohol from entering the employer’s premises (in compliance with regulation 2A of the aforementioned legislation). The trade union, representing its member employees, objected on behalf of its members to the introduction of the tests.

The Labour Appeal Court pertinently held that employers must perform risk assessments and consider what can or should be done under the circumstances, considering their knowledge of the situation to ensure the health and safety of employees, co-workers and others who might be put in harms way, because of their activities. Employers must then consider, given the circumstances, whether it is reasonable to do all that is possible to comply with their duty. The Court further held that there was no indication that proper consideration was given to the right of privacy of the employees. It held that the rights to human dignity, privacy, freedom of movement and bodily integrity are entrenched in our Constitution and that an employee’s consent is required before such an invasive and intrusive act (mandatory breathalyser tests) can be required from him/her.

The principles pronounced on by the court in this case highlight that, whilst there is a duty on an employer to create a safe working environment, it must do so bearing in mind the employees’ constitutional rights to autonomy, human dignity, privacy, freedom of movement and bodily integrity.

For various reasons, including the controversy surrounding the efficacy of the vaccine, the employees’ right to choose should be given preference. While reasonable alternatives exist to creating a safe working environment, including the use of personal protective equipment and other such measures, an employer will be hard-pressed to prevent its employees from gaining access to certain areas of its premises in violation of employees’ rights.

In the circumstances, a unilateral introduction of a policy/rule (alternatively a plain instruction) which precludes employees from accessing parts of the employer’s premises by reason that they have not taken the Covid-19 vaccine would be an unreasonable and impractical step to take in order to provide a safe working environment. This is so particularly in circumstances where (i) employees have not been consulted and/or have not consented to the introduction of a policy of this nature (ii) employees may have objections to taking the vaccine (philosophical, religious or otherwise) and/or (iii) there clearly exists other less-intrusive measures in order to ensure a safe working environment.

See also:

• Coronavirus – Occupational health and safety measures in workplaces – South Africa
• Is polygraph testing in employment disputes reliable?
• COVID-19: An accelerant for inclusion in the workplace
• The Bill of Rights
• UIF processing new COVID-19 TERS claims

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)