MANDATORY VACCINATIONS – THE RIGHT TO SAY NO

The controversial debate around your right to refuse the COVID-19 vaccination is far from over. In January this year MISA posted an article where we were of the opinion that you have a right to say no! In fact we concluded our article by saying that ‘There is no clear cut answer, each situation must be weighed and decided on its own merits. MISA’s view is the same as that of Professor Hugo Pienaar – ‘it is always the preferred option for the employer to engage in meaningful consultations with the employees and/or their representatives before embarking on any changes that will impact them.’

Regardless talks in the media, as recent as 3 June 2021, reiterating that the government’s stance regarding the COVID-19 vaccinations is that this will always be voluntary. There was even talks that an agreement from NEDLAC will confirm the same. Less than a week later the reality is that the buck, so to speak, now stops with your employer. In terms of the new ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ (Consolidated Direction), gazetted on 11 June 2021, your employer may decide whether he/she wants to make vaccinations in your work place mandatory.

The Employer’s Choice – Mandatory Vaccination

Your employer’s right to decide that vaccinations at the workplace must be compulsory is not absolute. The employer must undertake a compulsory risk assessment at your work place. Firstly, to confirm that the minimum protective measures are in place and secondly to decide within 21 days, from the 11^th of June 2021, whether it intends to make vaccination mandatory at the place of work.

This will not be an uninformed, unsubstantiated blanket decision by which every employee will be forced to vaccinate. There are certain prerequisites, such as the drafting of a Mandatory Vaccination Policy,  the hand of risk assessments and specific guidelines as set out in Annexure C of the Consolidated Direction.

• Risk Assessments: The Consolidated Direction places an onus on your employer, in terms of the operational requirements of the workplace, to do a risk assessment. The purpose of the risk assessment is to identify employees who will be at a greater risk for severe illness or death when they contracted COVID 19. The categories identified are the type of work engaged in, age and health/comorbidities.
• Consultation: Years ago I heard a saying that became one of the principles I try to live by, namely ‘Nothing about me, without me!’ The Consolidated Direction applies the same principle and instruct employers to consult with inter alia any Health and Safety Committee or representative, as well as your union, MISA, on any ‘Risk Assessment’ or ‘Workplace Plan/Policy’.

Consultation, in essence, is a joint consensus seeking process, with the emphasis on ‘seeking’. Should there be no consensus the policy must still endure scrutiny, should there be a dispute after the fact.

The right to say ‘no’

Since January this year when the possibility of ‘forced vaccinations’ was introduced in the media, I had my concerns and trust many of you along with me. The concept of forced vaccinations is now a reality in terms of the Consolidated Direction, especially when your employer choose to make vaccinations compulsory in your place of work.

You do however have the right to say no, with the understanding that no right is absolute. In terms of the Guidelines you have the right to say no on cultural, constitutional or medical grounds. The constitutional rights that might be applicable are the right to ‘bodily integrity’ (section 12(2)) and the right to ‘freedom of religion, belief and opinion’ (section 13).

Employer’s obligations when you say ‘no’

Your employer have at least three obligations when you say ‘no’ after being identified as someone who must vaccinate in terms of a Mandatory Vaccination Policy and Risk Assessment. These obligations are:

• Counselling: You and your employer must engage in counselling and should you wish, you may consult with a health and safety representative, a worker representative and your union, MISA.
• Further Medical Evaluation: The emphasis here is on ‘further’. This applies when there is a medical contraindication relating to your comorbidity. A contraindication is a specific situation in which a drug, procedure or surgery should not be used, because it may be harmful to you. The inference is that this should be identified and confirmed by a Medical Practitioner.
• Reasonable Accommodation: The guideline specify this to mean modification or adjustment to your job or your work environment that will allow you to remain in employment.

Dismissal when saying ‘no’

The Code of Good Practice, dealing with Dismissals, is clear that dismissal must be reserved as a last resort. As per Professor Hugo Pienaar, Director – Cliffe Dekker Hofmeyr, the ultimate process or label under which a possible dismissal will take place, is ‘Operational Incapacity’.

With both Operational Requirements as well as Incapacity, the Labour Relations Act 66 of 1995 (LRA) and the subsequent Codes of Good Practices, provides ample guidance. Specifically, in both instances, there must be consultation, consideration for reasonable alternatives and dismissal to be reserved as the very last resort.

The new Consolidated Directive and the drafting of a Mandatory Vaccination Policy is new and only time will tell how we as employees will be affected and what our recourse will be. We will unpack a preferred response and/or recourse in future articles.

Next week we will look at further obligations, including being off from work for being vaccinated or experiencing side effects.

Conclusion 

The critical points that needs to be emphasised is that no right is absolute and that you as employee are protected by legislation. The key aspect to bear in mind in terms of the Consolidated Direction, especially with reference to legislation, the ‘Mandatory Vaccination Policy’ and public interest, is fairness. Empower yourselves and let MISA be your voice!

MISA is only a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: 

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