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Can bosses fire employees who refuse Covid-19 jab? It's a murky area says lawyer

21 June 2021 2:12 PM
Tags:
Labour law
COVID-19
Covid-19 in the workplace
covid-19 vaccinations

Lester Kiewit talks to Labour Law Specialist at Maserumule Attorneys, Puke Maserumule about what the law says.
  • Regulations around whether employers can terminate employees who refuse the Covid-19 vaccination is a murky area says labour lawyer
  • Labour lawyer Puke Maserumule argues if a worker has constitutional grounds for refusing the jab, employers need to offer alternatives such as working from home and other methods of work

Image: © luiscarceller 123rf.com

As vaccines become more widely available in the country, mandatory vaccine policies at work are being considered. South Africa's labour department recently updated its guidelines for dealing with Covid-19 in the workplace, which now requires companies to declare whether they plan to make vaccinations compulsory.

Can an employer in South Africa force its employees to get vaccinated? And if an employee refuses to get jabbed, could you be fired? Labour lawyer Puke Maserumule weighs in.

Puke says the directions from government are not as clear as they could be.

But the essence of it is that an employer must now conduct a risk assessment which will determine whether from that employer's perspective the vaccination should be compulsory.

Puke Maserumule, Labour Law Specialist - Maserumule Attorneys

Whether the vaccination should be compulsory or not is determined by a number of factors, he says.

1.\ The nature of the work - whether the work could expose employees to potential infection

2.\ The health status of the employees - whether they have existing health issues that place them at higher risk

If employees fall into these criteria, the employer may develop a policy after labour consultations, that makes vaccination compulsory, explains Maserumule.

The regulations do state that once the policy has been determined, there are two grounds on which an employee could refuse to be vaccinated on constitutional grounds:

1.\ On the grounds of bodily integrity

Someone might show ho as a matter of principle they don't want to be jabbed and have anyone or anything such as a needle to penetrate their body.

Puke Maserumule, Labour Law Specialist - Maserumule Attorneys

2.\ If a person does not want to be vaccinated there should be further consultation and guidance

The employee should be encouraged to consult further before making a final decision.

Puke Maserumule, Labour Law Specialist - Maserumule Attorneys

Importantly the regulations state that the employer should then accommodate the employee who refused the jab on recognised constitutional grounds, by offering them alternatives including working from home, adapting the work, or placing the employee in an office away from other workers.

So firing an employee seems unlikely?

Whether an employer could ever justifiably terminate employment on the basis that an employee has refused to be vaccinated is still wide open as a question, and is not expressly set out in the regulations.

Puke Maserumule, Labour Law Specialist - Maserumule Attorneys

Would an employee be exempt under religious grounds?

Maserumule says once this is put forward as a reason not to be vaccinated, and the employer then argues that the employee's continued presence at the workplace poses a risk of infecting others, and cannot reasonably accommodate such an unvaccinated employee, then the contract may be terminated on operational grounds.




21 June 2021 2:12 PM
Tags:
Labour law
COVID-19
Covid-19 in the workplace
covid-19 vaccinations

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