Is it constitutional to force an employee to be vaccinated against Covid?
The opinion worldwide seems to be that there must be a balance between an employer’s obligation to provide a safe and secure working environment and an employee’s right to freedom and security of person. This includes the right to bodily integrity and the right to freedom of religion, belief, and opinion.
Science seems to show that vaccines are highly effective. The anti-vaxxers have concerns about the safety, efficacy and both long-term and short-term side-effects and consequences of the various available Covid-19 vaccines.
In June 2021. the Department of Employment and Labour issued occupational health and safety directive that permits (but not obliges) an employer to implement a mandatory workplace vaccination plan subject to specific guidelines. These include whether the employer intends to make vaccinations mandatory, which employees must be vaccinated, etc. The employer needs to consider age, comorbidities, risk of transmission due to the job role, etc.
At present, no legislation exists regulating immunization in the workplace.
Section 12(2) of the Constitution provides that everyone has the right, among other things, to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.
Section 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief, and opinion.
This seems to give the employee a protected right to refuse to be vaccinated.
However, our courts have found that such rights must be balanced against the community’s rights when there are justifiable grounds for doing so. Section 36 of the Constitution provides for the limitation of constitutional rights as it is reasonable and justifiable, based on human dignity, equality, freedom, and other factors that may limit an individual’s rights.
No court has yet ruled on the issue of compulsory vaccinations. Still, several decisions show that the public interest outweighs the right to bodily and psychological integrity of individuals in some instances.
Courts may well find that vaccinated employees have a constitutional right to life compromised by employees who refuse to be vaccinated.
Employers must protect their employees and maintain a healthy and safe working environment. Employers have to factor in the viability of continued remote work, which employees that come to work may be vulnerable, what safe and effective alternatives to vaccinations exist (such as allowing the employee to work from home or to self-isolate in the workplace; or require the employee to wear an N95 mask while at work).
In summary, employers may enact a policy of mandatory vaccinations, but the process must be accompanied by a thorough consultation process and must respect the rights of the employee. Where practical, in the face of employee resistance to vaccinations, employers should consider all less intrusive and restrictive means to ensure occupational health and safety.