Can You Be Fired For Not Being Vaccinated?
Questions around whether you can be forced to take the COVID-19 vaccine before being able to return to work, and whether or not you can be fired for refusing to be vaccinated have become key talking points in workplaces across the country. Although these are interesting questions, the answers are far from clear.
This issue sees the clash between various sets of rights and obligations, for example:
- a person’s right to security in and control over their body and the potential limitation of that right in terms of section 36 of the constitution;
- provisions in the National Health Act that, with a few circumscribed exceptions, require a person’s consent before medical procedures are performed on them – and a vaccination would fall within that definition;
- the obligation on employers to provide a sufficiently safe and healthy workspace for its employee;
- the obligations on businesses, especially those in e.g. healthcare, education, hospitality etc., to provide reasonably safe and healthy environments and contact points for customers/clients/patients;
- the requirements set out in the Labour Relations Act that no person may be dismissed unless it is for a legally justifiable and fair reason, and in accordance with a fair procedure; and
- coming back to the Constitution, the right of every person to free economic activity and the right to pursue a livelihood (without undue interference).
Section 36 of the Constitution states that the bill of rights may only be limited where reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account certain factors.
The factors in question are:
- the nature of the right;
- the importance of the purpose of the limitation;
- the nature and extent of the limitation;
- the relation between the limitation and its purpose; and
- [whether there is a] less restrictive means to achieve the purpose.
The reasons that employers will want their employees vaccinated include:
- The fact that they are obliged to provide a safe and healthy working environment for all of their staff and, in many cases, their customers;
- The enormous pressure that businesses are under and the fact that an unhealthy workforce may make it almost impossible for businesses to continue; and
- The increased risk of sick leave abuse in circumstances where employers are obligated to exercise extreme caution.
When one person’s health is connected to other people’s health risks in the midst of a global pandemic, whose rights are more important?
As there is no law making vaccination mandatory (and one is unlikely to be passed) the situation is an incredibly difficult one, and balancing the rights of employee and employer will be key.
Firstly, it should be mentioned that employers are entitled to request that their employers be vaccinated. This can be no more than a request – it cannot be a demand and it cannot be forced – but there is nothing prohibiting employers from having such a discussion and making such a request. Where an employee refuses to be vaccinated, that is the end of the vaccination discussion, and employers are limited to dealing with the implications and consequences for the business.
Employers are advised to deal with these on a case-by-case basis. For example, if the employee works in a frail care unit or in a medical capacity (eg nurses, carers, doctors, etc), or where vaccination is a requirement for travel, employers may need to consider whether their operational requirements can accommodate employees who are not vaccinated. In such cases, employers may embark on retrenchment or redundancy processes (which are done on a no-fault basis). In other words, the employee cannot perform their function unless vaccinated as they are a danger to those in their direct care or contact. The other side of the same coin is that it may also be that the employee is unable to perform his or her duties as the employer cannot provide them with a safe and healthy work environment unless they are vaccinated – especially in the medical or carer fields.
Alternatively, where an employee refuses to be vaccinated and, for example, repeatedly cannot come to work because they show symptoms of COVD-19 (especially in cases where the individual refuses to be tested for COVID-19), it may be that the employee is to be considered incapacitated by illness and therefore unable to fulfill their duties. Under these circumstances, there may be grounds to commence an incapacity counseling process that may culminate in the dismissal of the employee (also on a no-fault basis). It must be borne in mind, however, that the Labour Relations Act places stringent responsibilities on employers to consider reasonable alternatives to dismissal in such cases. Many of these alternatives have become quite commonplace since lockdown forced everyone to adapt . . . and adapt quickly. For instance, employers will need to carefully consider whether the person’s job can be changed, whether technology can assist in protecting both the employee and those with whom they have contact, and whether remote working is a solution (whether in part or completely).
In the meantime, employers must deal with COVID-19 related matters on a no-fault basis and will have to take each situation on its merits. This kind of uncertainty is unwelcome at a time when businesses are looking for ways in which to recover from the financial impact of COVID-19. Uncertainty carries with it increased risk, and risk has a financial impact on businesses both directly (in the sense of what processes and procedures need to be put in place) and indirect (being the potential cost of litigation which an employer will face should an employee choose to go to the CCMA or the labour court to assert rights which he or she believes they have).
As is the nature of these kinds of issues – where we cannot expect the legislature to envisage and solve every problem and permutation in advance – we will have to wait until the courts have decided on some of these matters. We will all have to learn from other people’s mistakes and their successes as the Courts give verdicts after the fact.