Mandatory vaccination at the workplace during Covid-19 : An assessment through the lens of past pandemics

Abstract

A National State of Disaster was declared in South Africa on the 15th of March 2020. President Cyril Ramaphosa announced on the 26th of March 2020, that South Africa would enter a nationwide lockdown for 21 days. Civil liberties were limited for purposes of achieving public health goals. The era of Constitutional supremacy has brought with it many freedoms which are guaranteed to every South African citizen. The Bill of Rights contains fundamental rights which should not be taken away for any unjustifiable reason. This study was concluded within the backdrop of Covid-19 pandemic. An issue which swept the world was that of mandatory vaccination as a means to overcome Covid-19 especially in the workplace. The infrastructure of Labour Law in South Africa is comprehensive and offers employees widespread protection. The Labour Relations Act 66 of 1995 offers employees protection from unfair discrimination this includes grounds such as those mentioned in the Constitution of the Republic of South Africa. Similarly, the Employment Equity Act 55 of 1995 also protects employees from being unfairly discriminated against. On the other hand, employers had a duty to take reasonable steps to ensure that the working environment was safe and not a high-risk environment for employees. This is in line with the Occupational Health and Safety Act 85 of 1993. Therefore, employers needed to consider a host of factors when thinking of implementing mandatory vaccination policies in the workplace. It is not an overnight decision for employers, there was a stringent process that needed to be followed. This study took all of the abovementioned factors into consideration to provide an assessment of mandatory vaccinations in the South African Workplace. The problem statement in this study is whether or not mandatory vaccination could be implemented in the South African workplace. Due to the nature of our Constitutional dispensation, this decision is that much harder to put into practice. This study looked at pandemics in the past and how they were overcome. Furthermore, Covid-19 measures and the implementation of mandatory vaccination from different jurisdictions was examined. By looking at other countries, we can learn valuable lessons about how effective mandatory vaccination in the workplace will be. Additionally, lessons could be taken from how they went about implementing these policies. This study looked at the process that needed to be complied with before a business could implement mandatory vaccinations and the implications of such from a practical point of view. Additionally, this study examined the appropriate steps that an employer could take where an employee refused to vaccinate. Various legislation, recommendations, guidelines, frameworks, journal articles, books, case law and past practice will be considered. After looking into these aspects, this study will conclude whether or not mandatory vaccination was implemented effectively in the South African workplace. Although the Bill of Rights offers many human rights to every citizen, it also allows for justifiable limitations. The issue of mandatory vaccinations in the workplace was a relevant topic of debate. There were many arguments for and against it. Most businesses came to a standstill and could not function efficiently for the past few years. The South African economy was in desperate need to get back on its feet again. Therefore, this topic is beneficial and can shed light on whether mandatory vaccination will be an effective tool in overcoming future pandemics that are likely to occur in the future.