Provincial chairperson of SADTU in KZN Philani Duma gets vaccinated. Picture: Nqobile Mbonambi African news agency (ANA)
Provincial chairperson of SADTU in KZN Philani Duma gets vaccinated. Picture: Nqobile Mbonambi African news agency (ANA)

Work Covid-19 vaccination debate rages, forcing employee unconstitutional while safe environment is needed

By Vernon Mchunu Time of article published Aug 2, 2021

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DURBAN - WHILE Cosatu was encouraging employees to take the Covid-19 jab as a way to help revive the ailing economy, the federation said it would fight any forced vaccinations.

This as the debate rages on about whether employers can compel employees to provide proof of vaccination as an employment condition, with labour law experts arguing that companies have a legal and moral obligation to ensure a safe working environment.

Insisting that employers could not force workers to get vaccinated, Cosatu spokesperson Sizwe Pamla said organised labour was encouraging workers to take the vaccine, saying people needed to look at it as a way of protecting themselves, their families, their colleagues, and, overall, as a way of saving the economy.

“If you look at the devastation to the economy as a result of these lockdowns, it has been massive. We hope to avoid these lockdowns and we think vaccinating is one way that will make that possible,” he said.

“Employers do not own workers. That means employers cannot impose anything on workers. Under our Constitution, Section 12.2 protects bodily integrity,” said Pamla.

“Workers have constitutional rights, and those rights cannot be violated by employers. The same (supreme law) under Section 13 makes it very clear that people have a right to object to vaccines on the basis of their religious or cultural beliefs. Employers are not empowered to force people to vaccinate. We also look at the Labour Relations Act (Occupational Specific Dispensation). It does not empower employers to dismiss workers, so the solution going forward is that there has to be a dialogue. Of course all constitutional rights are not absolute. The issue of health and safety at work is a big issue.

“For us as unions, it’s even more complicated by the fact that we have to protect both those who refuse to take vaccines, and those who are not happy about their colleagues not taking the vaccine. Rather than throwing the rule book at people who hold unpopular or awkward beliefs, we hope that employers can join us in convincing people to vaccinate.

“We hope we won’t end up in court if people are forced. But as things stand, we want to work with employers to encourage people to vaccinate,” said Pamla.

Attorney Michael Maeso, Shepstone & Wylie’s employment and pensions law department head, described the issue as complex, but added that the employer was obliged to keep a safe workplace.

“Various protocols have been established to allow a reasonably safe return to work (following various levels of lockdowns).

“However, the workplace may require vaccination to provide the highest level of safety,” he said.

Citing as an example the mining industry, Maeso said that should there be employees who, for medical and other reasons, refused, the employer would have to consider allowing them to work from home or be allocated individual office space, or have limited interaction with others.

“However, there will be circumstances where the employee cannot be accommodated and continues to refuse to be vaccinated.

“In these circumstances the employer will have the right to dismiss for operational reasons or incapacity. The employee who does not vaccinate poses a threat to the safety of others,” said Maeso.

Economist and political commentator Professor Bonke Dumisa, who is also a high court advocate, said it was the employer’s right to formulate workplace policies.

He said Section 36 of the Constitution limited people’s rights and allowed for the employer to make rules where reasonable grounds existed.

Professor Thumbi Ndung’u, deputy director of the African Health Research Institute, said the government should do more to promote awareness and counter vaccine misinformation.

“However, in South Africa, the problem so far has been a slow rollout of vaccination rather than hesitancy or hostility to vaccines,” said Ndung’u.

Yesterday the South African Human Rights Commission’s chief executive, Tseliso Thipanyane, said the commission was looking further into the issue following a directive issued by Employment and Labour Minister Thulas Nxesi on June 11 and “a conflicting position” of Acting Minister of Health Mmamoloko Kubayi.

“Our position before the review next week is that while we encourage people and our staff to get vaccinated, Section 12 of the Constitution provides that people should not be compelled to get vaccinated outside a law of general application, which would limit this right, and such a limiting law should meet the requirements of the limitation clause in Section 36 of the Constitution.”

The employer should give an employee an opportunity to consult with their health and safety representative or a trade union, and should also be given paid time off in case they develop side effects after taking the vaccine. VACCINATION GUIDELINES

Asked for comment, Employment and Labour Ministry spokesperson Musa Zondi referred The Mercury to the guidelines on vaccination, which state that “every employee should be notified by the employer of the obligation to be vaccinated as and when a vaccine becomes available for that employee, as well as be informed about his or her right to refuse to be vaccinated on constitutional or medical grounds”.

“The employer should give an employee an opportunity to consult with their health and safety representative or a trade union, and should also be given paid time off in case they develop side effects after taking the vaccine. Employers should also undertake steps to provide alternative work spaces where vaccination may not be necessary,” state the guidelines.

Kubayi said at the weekend that the department was concerned “at the growing spread of fake news and false narratives about the side-effects of vaccines”, and added that people would not be forced to take the vaccine.

“(The fake) stories are aimed at creating panic around the vaccination programme and to discourage people from vaccinating.

“We all have freedom of choice. It is everyone’s democratic right to choose not to vaccinate, and the government will not force anyone who chooses not to vaccinate, to do so against their will,” said Kubayi.

“We appeal to those who have made the choice not to vaccinate to respect the right of others to make a choice by not flooding them with false information, fake news and other falsehoods aimed at discouraging them from vaccinating.”

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THE MERCURY

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