Johannesburg - South Africans who intend to apply for vaccine exemption on the basis of religion, opinion or belief are going to have a hard time proving “belief”. This is the warning from Talita Laubscher, a partner at Bowmans South Africa, who stressed that every right has its limitations.
The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, which was amended by the Minister of Employment and Labour with effect from June 11, entitles employers to implement a mandatory vaccination policy for certain categories of employees.
Companies have already announced that come January 1, all employees must be vaccinated before they return to work in the new year. Laubscher, and candidate attorney, Alexia Kaplan, said employers would, however, need to tread carefully when shouldering their responsibility of maintaining a safe and healthy working environment. This, while still ensuring that they respect the rights of employees who raise concerns around being vaccinated.
“An employer’s right to implement a mandatory vaccination policy is not absolute. As such, employers need to be cautious if they are to avoid claims of unfair discrimination, or unfair dismissal, or reputational damage,” said Laubscher. .
As the law stands, employers who decide to implement mandatory vaccination policies, must do so if it is necessary to ensure the health and safety of their employees and people with whom they interact. Accordingly, the employer is required to conduct a risk assessment and identify categories of employees who are regarded as vulnerable (those over 60 and those with underlying comorbidities) and those who, through their work, are at a higher risk of transmission of the virus. This might be the case with front-line staff members who interact with members of the public, or those who have close contact with fellow workers.
Laubscher and Kaplan added that an employer will then have a further legal obligation to reasonably accommodate employees refusing to be vaccinated on medical or constitutional grounds. The constitutional rights that come into play are the right to bodily integrity and the right to religion, conscience or belief.
But Laubscher stressed that this too, is not an absolute obligation and would not apply where the effort and cost involved in accommodating the employees results in unjustifiable hardships for the employer. .
“This is where the difficulty will come in for people who will use religion or belief as a reason for exemption. Such an employee will have to prove that neither they, nor their children, have ever taken any kind of vaccine in their lives. It cannot be a case that you’ve had some kind of epiphany during this Covid-19 pandemic,” she said.
Where an employee objects to the vaccination requirement on religious grounds, employers must take note of the principles that have been developed by the courts when it comes to alleged unfair discrimination on the basis of religious beliefs.
In a Constitutional Court case, MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (2) BCLR 99 (CC), the Constitutional Court held that in order to determine if a practice or belief qualifies as religious, a court should ask only whether the claimant professes a sincere belief. Further, 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, as a matter of religious doctrine, a particular practice is central to the religion.
Laubscher added that the question was how central the belief was to the individual’s religious identity. These principles were applied in the employment context in the case of TDF Network Africa (Pty) Ltd v Deidre Beverly Faris (2018) JOL 40638 (LAC).
The Labour Appeal Court reiterated that even where individuals who belonged to a particular religion weren’t obliged to observe a certain practice, they would still be protected where they felt that the particular practice was central to their religious identity.
“The court explained that in this assessment, evidence of the objective centrality of the practice to the religious community at large would be relevant, but only insofar as it helps answer the primary enquiry; namely whether the employee regards the particular practice as central to her/his religious identity,” said Laubscher and Kaplan.
In assessing a request for a religious exemption, an employer can consider a range of factors, including evidence that speaks to whether the employee is part of a recognised religious group; the objective centrality of the practice to the religious community in question; and, importantly, whether the employee regards the practice as central to her/his religious identity.
In this regard, the employer can require proof of past conduct in support of the employee’s religious practice. Where an employee’s prior conduct contradicts the request for accommodation this too would be relevant to consider.
“If the employee previously had a different vaccination (for example, a yellow fever vaccine for travelling) and now refuses the Covid-19 vaccination because of an alleged religious objection, then it would be reasonable to conclude that the belief is not sincerely held.
“Where an employer determines that a religious belief sincerely held by the employee prevents her/him from being vaccinated, the employer should take steps to reasonably accommodate the employee, unless this would result in unjustifiable hardship,” the pair said.
Laubscher said while the position, as it relates to exemptions on the basis of religious grounds, was reasonably clear, the position regarding the right to belief and opinion may be more difficult to assess. Laubscher concluded that the position may change when SA reached herd immunity of between 70% and 80%.