With the introduction of The Department of Employment and Labour’s Mandatory vaccine Directive in June 2021 employers have been afforded the opportunity to implement a mandatory Covid vaccination policy within workplace. One reason which may lead employers to consider this type of action within the workplace, would be so that they can uphold the requirements of the health and safety act which requires employees to ensure that their workplace is safe and does not impose any risk for employees (suppliers, clients, vendors and the general public alike), and carries with it a criminal sanction for noncompliance. Another reason for possible implementation of the mandatory vaccine policy is to ensure as little loss of production because of absenteeism or the shutting down of businesses as a result of Covid-19, both of which can cause considerable strain on a company’s ability to operate.
Companies considering the implementation of the Mandatory exception must first have established the levels of risk within their organisation and measured these to establish which, if any, are considered High Risk environments. In addition, employees who have co-morbidities or are considered vulnerable in terms of their health, could be highlighted as high-risk employees and this should also be metered against the risk levels of the company and the position that the employee holds within that company. These various aspects need to be considered prior to the implementation of the vaccine policy and parties within the organisation would need to be consulted as part of the process.
The directive itself offers employees the right to employees to raise an exemption which employers must consider allowing employees to practice their constitutional rights and the fundamental values enshrined in the SA constitution. Workplaces are beginning to introduce vaccine policies, in some cases as a requirement and in some cases is considered a highly recommended business practice.
Exemptions have been permitted under medical and religious grounds. While medical grounds are easier to establish, as they can be supported by medical professionals, exemptions based on religious grounds comes with certain limitations and would be more difficult to submit either due to the lack of understanding of the religion by others, or due to resistance from others to by in to the fundamental concepts of the religion which render the employee unable to practice their religion should they be forced to take the Covid-19 vaccine.
To date no employer has been taken to CCMA where an employee has raised a dispute against a mandatory policy based on religious objections in South Africa however in America this has happened. In America vaccination policies have been implemented without including an exemption process leaving all employees mandated to get vaccinations without the ability to be exempt. Courts in America have imposed a temporary restraining order on this practice as they believe that there is enough to indicate a violation of rights. In SA the Mandatory vaccination policy is underpinned by the constitution. Looking forward to potential discrimination cases due to religious grounds in SA, employees would have to establish that the taking of the vaccine interferes with their religious belief first and foremost and then secondly that the vaccine would violate a central tenant of their faith.
Bringing a religious exemption to a mandatory vaccination policy the individual must be able to show that taking the vaccine interferes with the ability of that person to practice their faith and that interference is a central tenant of the faith.