Can an employee be fired for refusing to be vaccinated?

Editor’s note: since writing this article, the Department of Employment and Labour in South Africa issued guidance on vaccination policies in the workplace. Employers seeking to implement a mandatory vaccine policy must undertake a risk assessment, See this article

Countless South Africans are anxiously awaiting their chance to get vaccinated against the novel coronavirus (COVID-19). However, in many countries, some people have refused to be inoculated.

Our President made it clear that this is a voluntary vaccine.

While no firm regulations are in place around international and interstate travel, some countries may require travellers to have a Covid vaccination passport. In time, pubs and restaurants could also refuse entry to people who refuse to get vaccinated.

Can your current (or prospective) employer force you to be vaccinated as the government eases pandemic restrictions and we go back to work? Can a mandatory COVID-19 vaccination be required as a condition of employment?Can an employee be dismissed for refusing to be vaccinated?

The law is unclear.  Until our courts rule on a case-by-case basis, employers should be wary of making a jab compulsory and dismissing an employee who refuses the vaccination.

Our courts will balance employees’ rights between our Constitution (that gives citizens the right to privacy or bodily integrity) and compliance with health and safety protocols. The applicable laws are the Disaster Management Act, the Occupational Health and Safety Act, the Mine Health and Safety Act, and other legislation pieces, including the Labour Relations Act (the LRA).

Section 187(1)(f) of the LRA makes a dismissal automatically unfair if an employer unfairly discriminates against an employee on grounds such as age, religion, conscience, and belief as well as “any other arbitrary ground”. Time will tell if an employer can fairly dismiss an employee who refuses the vaccination on religious or similar grounds.

Employers should create a Covid vaccination policy that may be mandatory or flexible, depending on the workplace health risks.

The ultimate test will be if the mandatory vaccination policy was fair and reasonable in the circumstances of each case. If it was, an employee’s refusal to be inoculated might be a ground for dismissal.

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