Mandatory Workplace Vaccinations

LEGAL MATTERS BY SILKE RATHBONE |PRINCIPAL PARTNER, LABOUREXCEL

Can your employer force you to take the vaccination and how does this affect your constitutional rights?

The world has gone mad, or so it seems. We have been taken over by a virus – the stuff of movies, right? Well, it’s not a movie - it is very real – and we need to treat it as such.

Within a few short months, we have come to realise that life as we know it will never be the same again.

We walk around with masks, we need to be aware of how close we are to others, and we need to consider that in order to survive, we must look at a solution. That solution, or at least preventative measure, is a vaccination. Many have been sceptical about taking the vaccination. Talk of chips being implanted, making things worse and many other, what can only be viewed as conspiracy theories, have been thrown about. But, whatever you may think, this is an option we need to consider if we want to keep this nasty virus at bay.

How this affects businesses

Employers worldwide have also had to consider how to keep their businesses afloat during this pandemic and how to keep their employees safe.

As a result, many have resorted to remote working, asking their staff to stay indoors and work via online methods and tools with them and their clients and customers. This has worked to a degree, but for some businesses, they need to get back to the office, to the factory, to the shop, or to a place where everyone is together. Whether employers can force their employees to take the vaccination has come up and has been heavily debated.

If some employees are worried about taking the vaccination then their employers are also concerned because if they don’t get their employees to take it, they then risk infecting other employees or, alienating them and risking candidates not wanting to apply for significant positions in the business.

They are also worried that if the employees take the vaccination and have adverse effects, they may blame and even sue the employer.

Consultation is necessary

At the end of the day, what needs to happen first is a one on-one consultation with each employee, a conversation as it were, and the employer needs to know their facts to make it clear that:

They are implementing the compulsory vaccination project for the safety of their employees, suppliers and clients alike;

The business’ future success and sustainability rests on having a healthy workforce and that the vaccination presents a way to ensure this; The employer understands that the employee has freedom of choice, human rights and religious beliefs- and that they are open to understanding where the employees views stand;

The employer must take into account these factors when considering a mandatory workplace vaccination policy: age, comorbidities, risk of transmission due to job role, and any collective agreement in place on the subject.

Further, the employer must educate the employees with regards to the nature, benefits and risks associated with the vaccines.

The guidelines

And, the objectives of these guidelines should:

• Not supersede or undermine any collective agreement on the matter;

• Be general and broad in nature and deviation may be required based on the specific workplace;

• Be based on mutual respect and striking a balance between public health imperatives, employees’ constitutional rights, and the efficient operation of the employers business.

The policy must include:

• A notice addressed to the employees that they must be vaccinated as and when vaccines and safety committees are available;

• Where possible, transport to vaccination sites;

• Allowance for an employee to take sick leave or paid time off should they suffer side effects after receiving the vaccine, alternatively claim on behalf of the employee regarding the Compensation for

Occupational Injuries and Diseases Act.

Should the employee refuse, the following needs to happen:

• Counsel an employee and allow them to speak with a trade union representative, a worker representative or a member of the health and safety committee

• Refer the employee for further medical evaluation where the objection is on medical grounds. This will require the consent of the employee

• Take steps to reasonably accommodate the employee by making amendments to their role or work environment in one or more of the following ways:

• Allow them to work from home where possible, require that they self-isolate in the workplace; or require the employee to wear an N95 mask while in the workplace

• Perhaps rather include a

“opt out” clause instead of making the policy mandatory.

LabourExcel specialises in offering a variety of Labour Law and HR Solutions.

Silke Rathbone, one of the Principal Partners, has crafted and honed her skillset and assists corporates and individuals along the Labour journey to ensure they understand what is required of them at all levels.

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COVID – 19 and Vaccination policies. n