Mandatory COVID-19 vaccine and testing policy in the workplace has been saved
Mandatory COVID-19 vaccine and testing policy in the workplace
Interest of public health vs constitutional rights
Published: 4 October 2021
Many businesses employ hundreds of workers who are required to be stationed in close proximity to each other in order to execute their work. Where the nature of the work is such that it cannot be performed remotely, and physical attendance at the worksite is an essential component of the job (particularly in the manufacturing and retail sectors), keeping the worksite safe and mitigating the spread of COVID-19 and other infectious diseases becomes critical.
Since the outbreak of the COVID-19 pandemic, businesses have had to implement mandatory safety measures, as set out in the regulations issued under section 27(2) of the Disaster Management Act, 57 of 2002 (the Regulations)1. However, with the rollout of the nationwide vaccination programme, and the relaxation of some of the Regulations, businesses are considering their extended roles and responsibilities in the prevention of the spread of COVID-19 amongst their workforces, and are considering whether mandatory testing for COVID-19 and/or vaccination of its workforce is permissible.
Legal framework for mandatory workplace testing
The Consolidated Directions on Occupational Health and Safety Measures in certain workplaces, issued by the Department of Labour in terms of the Regulations on 11 June 2021 (Directive)1, requires employers to screen employees for COVID-19 symptoms when they report for duty. The mandatory screening, while taking into account any additional guidelines issued by the National Department of Health, is limited to:
- external observation of symptoms (such as cough, shortness of breath or difficulty breathing, fever, weakness, redness of eyes, etc.)
- requiring employees to inform the employer if they experience any COVID-19 symptoms while at work.
Additionally, in terms of the National Health Act, 61 of 2003 (National Health Act) and its regulations, COVID-19 may be classified as a notifiable medical condition. Any person presenting with clinical signs and symptoms of a notifiable medical condition, or who has been in contact with a case or carrier of a notifiable medical condition, is obliged to undergo a medical examination. A failure to do so may result in a court application for enforcement of such compliance.
The Constitution of the Republic of South Africa, 1996, however, entrenches an individual’s right to bodily integrity, as well as the right to freedom of religion, belief and opinion. Accordingly, an individual cannot be forced to undergo medical testing without expressly and willingly consenting to such testing.
That being said, the Employment Equity Act, 55 of 1998 permits medical testing2 of an employee where this is permitted or required by legislation, or if the testing is justifiable in light of medical facts, employment conditions, social policy, fair distribution of employee benefits, or where inherent job requirements necessitates such testing. Accordingly, medical testing in compliance with the directive’s requirements and physical testing for COVID-19, where clinical symptoms are observed or reasonable suspicion of exposure exists, are currently permitted in the workplace.
In the absence of any further legislative requirement for physical testing for COVID-19, in order for an employer to be able to mandate COVID-19 testing in the workplace, the employer would need to be able to show that such testing is justified on other grounds, such as employment conditions, social policy or inherent requirements of the job. The South African courts have also previously provided additional guidance as to factors which would need to be considered when determining whether an employer may mandate medical testing of employees, such as whether the test is intended to be voluntary or compulsory, the financing of the test, pre- and post-test counselling and the nature of the proposed test and procedure.
This means that testing without observed and confirmed symptoms of COVID-19, or significantly supported suspicion of exposure to COVID-19, would require justifiable reasoning, taking a number of factors and the specific circumstances of the workplace as well as workforce into account.
Mandatory testing versus mandatory vaccination
Mandatory vaccination falls within the category of “medical treatment” as contemplated by the National Health Act, which would generally require the informed, specific and voluntary consent of the user (in this case the employee). Mandatory vaccination policies have been recognised by the directive as permissible. However, this remains subject to the determination that the vaccination policy is necessary having regard to the specific workplace and an assessment of whether the purpose of the policy can be achieved by less imposing measures (e.g. social distancing, vulnerable employees working from home, mask wearing and regular sanitisation, as set out in the directive). Other factors which would need to be considered include the availability of the vaccine, its safety and its cost (for example, it would be unreasonable of an employer to mandate vaccination where the vaccine is not publicly available, or is suspected to be unsafe).
Understandably, many businesses may be reluctant to implement mandatory vaccination policies due to concerns that such policy may infringe the constitutional rights of their workers. Vaccination requires the injection of a foreign substance into the human body, an invasive procedure, and to some, in violation of their cultural and/or religious beliefs.
However, in certain work environments the observation and implementation of the directive dictated COVID-19 protocols and preventative measures may be insufficient to protect the general workforce in the recurring surges of the virus. Any such outbreaks of positive cases in its workforce are likely to be disruptive to operations and pose a risk to the general public too.
In light of this, and instead of a mandatory vaccination workplace policy, certain businesses may require workers to be tested for COVID-19 on a regular basis, with the frequency of testing being guided by the level of risk and rates of infections observed in the workplace at any given time. Where an employer does not require mandatory COVID-19 vaccination (which as noted is potentially permissable under the directive), it can be argued that mandatory COVID-19 testing, in line with the directive guidelines, is a “less imposing measure” necessary to ensure safety in the workplace.
Ask first, then impose
It is likely and even anticipated that certain workers will refuse mandatory COVID-19 testing. In such cases, the employer will need to determine what approach it will take to deal with such refusals.
While the administration of a vaccine may be refused on the basis of medical objections and safety concerns, as well as religious, cultural or philosophical objections, the same arguments are difficult to make in respect of COVID-19 testing. An employee refusing to comply with the requirement to test will need to provide a sufficiently justifiable reason for such refusal. One such reason could conceivably be the level of physical discomfort caused by the administration of the test or any long-term physical harm which may be caused from repeated testing. No religious, cultural or philosophical objections are immediately apparent, but cannot be excluded as a possible ground for refusal.
If an employee refuses mandatory COVID-19 testing, the employer can proceed with implementing the mandatory COVID-19 testing policy and:
- declare a dispute and lockout the relevant worker (in the hope that this would force the worker to ultimately agree to the policy). The employer may opt not to remunerate the worker on the basis of “no work, no pay” for the duration of such worker’s absence from the workplace (to the extent that such individual is unable to perform the work remotely); or
- dismiss the worker for misconduct (refusal to comply with a reasonable instruction) or operational requirements (the requirements of the role being restructured to include mandatory testing, and the employee no longer meeting those requirements). This approach should however be undertaken with extreme care and in compliance with the procedural requirements of the Labour Relations Act, 66 of 1995.
In response to such action, the employee (or trade union representative) can, in the case of a lockout:
- refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council. The employee may request the CCMA or bargaining council to rule that the employer may not implement the policy or, if the policy has already been implemented, to cease implementing the policy. Furthermore, the employee (or trade union) may refer the dispute to strike (subject to the necessary procedure requirements); or
- make a claim of constructive dismissal or breach of contract (or a claim for unfair dismissal in the event that the employer opts to terminate the employee’s employment).
Arguably, should the business have a sufficiently strong cause to embark on a mandatory COVID-19 testing policy, it would be equally justified in locking out or dismissing employees who refuse to comply with the policy. It is therefore crucial to ensure that the reasoning provided for mandatory testing can withstand a challenge before a labour tribunal.
Walking the line between public health and safety interests and the individual’s right to bodily integrity is not an easy task. However, in the current global circumstances, the matter cannot easily be ignored or sidestepped, and businesses may be called upon to define their approach.
1Published in Government Notice No. 480 in Government Gazette No. 43258 of 29 April 2020, as amended.
2Published in Government Notice No. 499 in Government Gazette No. 44700 of 11 June 2021.
3The term “medical testing” is defined in the Employment Equity Act, 55 of 1998 as any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition.