While employers in South Africa have the right to implement a mandatory vaccination policy for certain categories of employees, they will need to exercise caution when implementing these rules, say legal experts at the firm of ‘Bowmans lawyers.
This includes taking responsibility for maintaining a safe and healthy work environment while ensuring that they respect the rights of employees who raise concerns about vaccination, the company said.
“The right of an employer to implement a compulsory vaccination policy is not absolute. As such, employers need to be careful if they want to avoid complaints of unfair discrimination or unfair dismissal, or damage to reputation.
“Employers who decide to implement mandatory vaccination policies should do so if it is necessary to ensure the health and safety of their employees and those with whom they interact. “
As a result, the employer is required to carry out a risk assessment and identify the categories of employees considered vulnerable, i.e. people over 60 and those with underlying comorbidities. , and those who, through their work, are at higher risk of transmission. virus.
This could be the case with frontline staff who interact with members of the public or those who have close contact with colleagues, Bowmans said.
An employer will then have another legal obligation to reasonably accommodate employees who refuse to be vaccinated for medical or constitutional reasons.
“The constitutional rights that come into play are the right to bodily integrity and the right to religion, conscience or belief. This, too, is not an absolute obligation and would not apply where the effort and cost involved in accommodating employees results in undue hardship, ”Bowmans said.
“When an employee objects to the vaccination requirement on religious grounds, employers should take note of the principles that have been developed by our courts with respect to allegations of unjust discrimination on the basis of religious beliefs. “
Bowmans said there are two basic Constitutional Court cases that deal with these issues.
- The first is MEC for Education: KwaZulu-Natal and others against Pillay 2008 (2) BCLR 99 (CC) where the Constitutional Court ruled that in order to determine whether a practice or belief is considered religious, a court should only ask if the applicant professes a sincere belief.
- In addition, in Prince v President, Cape Law Society, and others 2002 (2) SA 794 (CC), the Court confirmed that it should not be concerned with questions of whether, in matters of religious doctrine, a particular practice is at the heart of religion. The question is to what extent belief is central to the religious identity of the individual.
These principles have been applied in the context of employment in the case of TDF Network Africa (Pty) Ltd v Deidre Beverly Faris, Bowmans said.
“The Labor Court of Appeal reiterated that even when people belonging to a particular religion are not required to observe a certain practice, they would always be protected if they felt that this particular practice was at the heart of their religious identity.
“The court explained that in this assessment, evidence of the objective centrality of the practice for the religious community as a whole would be relevant, but only to the extent that it helps answer the main question, namely whether the employee considers the particular practice to be essential to its religious identity.
What should an employer consider?
When assessing a request for a religious exemption, an employer may consider a range of factors, including:
- Evidence as to whether the employee is part of a recognized religious group;
- The objective centrality of the practice for the religious community in question;
- If the employee considers the practice essential to their religious identity.
“In this regard, the employer may require proof of previous behavior in support of the employee’s religious practice. When an employee’s past conduct contradicts the request for accommodation, it would also be relevant to take that into account, ”said Bowmans.
“For example, if the employee previously had a different vaccination – for example, a yellow fever vaccine for travel – and now refuses the Covid-19 vaccination due to an alleged religious objection, then it would be reasonable to conclude that belief is not sincerely held.
Where an employer determines that a religious belief sincerely held by the employee prevents him from being vaccinated, the employer should take steps to reasonably accommodate the employee, unless it causes undue hardship, a declared the company.
The following are examples of potential accommodation options an employer might consider:
- Allow the employee to work off site or from home;
- Allow the employee to work in isolation in the workplace, such as in their own separate offices;
- Oblige the employee to work outside normal hours;
- In case of limited contact with other people in the workplace, require the employee to wear an N95 mask; Where
- Move the employee to a position that does not require vaccination – such as a position that does not require face-to-face contact with co-workers or members of the public.
“However, the employer does not need to accommodate the employee when this would entail unjustifiable difficulties or operational difficulties or insurmountable expenses for the company. In that case, an employer would likely not be required to create a new job to accommodate the employee, ”Bowmans said.
Unexplored territory ahead
While the position regarding religiously-based exemptions is reasonably clear, the position regarding the right to belief and opinion may be more difficult to assess, Bowmans said.
“Here, no definitive direction exists from our courts on how these rights would be protected. In the recent case of Cape Peninsula University of Technology vs. Mkhabela the Labor Court of Appeal held that the combination of the rights of belief, opinion and religion in one section of the constitution appears to mean protection beyond purely religious views.
“The Constitution therefore extends protection beyond the right to believe in a supreme being, and a person’s agnostic or atheist beliefs would therefore also be eligible for protection.
In principle, “belief” would refer to something other than refutable facts. What is likely to be protected by article 15 of the Constitution are the deep convictions which are not informed and not affected by facts such as, for example, moral convictions against the consumption of original products. animal, the company said.
“In the context of a refusal to be vaccinated, an ‘opinion’ or ‘belief’ that the vaccine is not effective may be considered a statement of fact rather than a belief, as such statements can be refuted. by medical evidence.
“What is clear is that each case will need to be assessed on the basis of its own facts and an employee’s reasoning for their opinions will need to be carefully considered.”
- Commentary from Talita Laubscher (partner) and Alexia Kaplan (lawyer candidate) at Bowmans South Africa.
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