Get vaccinated or get fired: it’s not that simple

The department of employment and labour released its latest Consolidated Direction on Occupational Health and Safety on June 11. Since then a number of employers have relied on the mechanisms set out in the directions to establish mandatory vaccination policies.

In short, the directions allow, but do not require, an employer to undertake a risk assessment to determine whether it will make the vaccination of employees mandatory.  The risk assessment must assess whether mandatory vaccinations are necessary, based on the operational requirements of the employer. The employer may therefore decide, after the assessment and taking into account its operational requirements and working environment, that it will not do so.  

Operational requirements in this case are not elaborated on in the directions, but are likely to encompass factors such as whether employees operate remotely, social distancing limitations and sensitisation measures in the workplace, the usage of PPE and the prevalence of Covid-19.

If the employer does intend to make vaccination mandatory, it is required to identify the employees for whom this is necessary, based on their risk of transmission of Covid-19 through work and/or their risk for severe Covid-19 or death due to factors such as age or comorbidities. As such, it is essential to note that the employer does not have to adopt a vaccination policy that requires all of its employees to be vaccinated and the policy can require only those employees who are at risk, as assessed, to be vaccinated. If the employer concludes that it will not adopt a mandatory vaccination policy there should also be objective reasons as to why.  

If there is mandatory vaccination for any category of employees, the employer must notify the employee of the need to be vaccinated. The directions do not require the employer to obtain or pay for the vaccine, but it would be reasonable for the employer to assist the employee to register for private or public vaccination.

Recent approaches adopted by a number of employers appear to indicate that a hardline approach will be adopted to employees who refuse to be vaccinated. The popular reception seems to be get vaccinated or get fired. However, employers should be aware that this is not as easy it may seem and that the directions allow a fairly broad scope for employees to object.  

When an employer adopts a mandatory vaccination policy, it must notify the employee of his/her right to refuse to be vaccinated on constitutional or medical grounds. If the employee refuses on these grounds, the employer should counsel the employee on these issues and, if necessary, attempt to accommodate the employee through measures other than vaccination.

Employees are entitled to refuse to be vaccinated on constitutional or medical grounds. Medical grounds are expected to be the easiest category for an employee to rely on to refuse vaccination, but also would be expected to reasonably require the employee to demonstrate or produce an opinion from a medical practitioner indicating why vaccination may be risky and inadvisable. Without such objective proof, the employee will not have a legal basis to refuse on medical grounds.  

The more difficult reason for refusal is that of a constitutional ground, which is recognised in the direction (possibly not exclusively) to be the right to bodily integrity, freedom of religion, belief and opinion. If an employee seeks to rely on any of these grounds, what would be expected to be demonstrated by the employee in each of these categories is that there should be a cohesive system of belief which supports the employee’s refusal to be vaccinated. For example, if the ground for refusal is a religious reason, it may be expected that the employee would have to demonstrate that the religion in question has a coherent and systematic objection to vaccination (in respect of the Covid-19 vaccine or vaccination generally) and that this religious position is an established doctrine of that religion. A simple ad hoc appeal to being a member of a religion, without proof that such religion has adopted a position that requires its adherents to refuse vaccination, is probably not sufficient to constitute a ground for refusal. 

Similarly, a non-religious belief system or opinion which is cited as a ground for refusal would also reasonably require proof of the systematic and consistent approach adopted by such system. An appeal to conspiracy theories about the coronavirus or vaccination for Covid-19 will in all likelihood not pass the test, even if fervently held by the employee.  

The difficulty of the situation is that all these issues remain untested, and as such, it is likely that the courts will still have to provide guidelines (after cases start to come before it) about the fairness of whether employees may be required to be vaccinated, and whether their refusal to do so is fair and reasonable, and whether an employer who dismissed an employee when it considers that there is no fair and reasonable objection has done so fairly.

Bradley Workman-Davies is a director at Werksmans Attorneys