EMPLOYEES MAY BE COMPELLED TO TAKE THE COVID-19 JAB

  

 

                   EMPLOYEES MAY BE COMPELLED TO TAKE THE COVID-19 JAB

 

Author: Cephas Mavhondo, Legal Practitioner, Conveyancer and Notary Public.

LLB (Hons) (UZ), MBA (UZ)

 

                                                                

             

 Mhishi Nkomo Legal Practice, Harare

 

Date: 01/08/21

 

The strides by the government to scale up the voluntary vaccination process in Zimbabwe are welcome as a move to contain the surging virus. However, some employers are now appearing to be compelling their employees to be vaccinated. Resultantly, there is now a heightened debate as to whether or not an employer can compel an employee to be vaccinated. In my view, depending on the circumstances of each case, it may be legal for the employer to compel an employee to take the jab. The best approach though is for the employer to seek the employee's informed consent first. When, for one reason or the other, such consent is not forthcoming, the employer can then consider compulsory vaccination.

World Health Organization (WHO) validated a number of Covid-19 vaccines. The government of Zimbabwe, through the Medicines Control Authority of Zimbabwe, has, in turn, approved the use of various Covid-19 vaccines for example Sinopharm, Sinovac, Covaxin and Sputnik.

The fact that a vaccine was validated by WHO, does not mean that every person is legally required to take that vaccine. Although the goal is to have every person above 18 years vaccinated against Covid-19, certain legal hurdles may arise. In the field of employment law, the vaccination program cannot just go without being analysed. This is so particularly given the recent spate of circulars from employers issuing directives for workers to be vaccinated by certain dates. Whilst the intention and goal may be noble, the conduct must pass the tests of legality.

Before delving into the issue at hand, it is imperative to reiterate the core purpose of labour law to fully appreciate the legal dynamics at play in the present discussion. The purpose of labour law is to govern the relationship between the employer and the employee in one way or the other.

 

From the onset, it should be noted that in Zimbabwe employment matters are governed statutorily under a two-tier system. The employers and employees in the civil service on the one hand are governed by the provisions of the Constitution, Public Service Act (Chapter 16:04) and the regulations made thereunder while the employees and employers outside the civil service are governed by the Constitution and the Labour Act (Chapter 28:01) including the regulations made thereunder. In addition, the employer-employee relationship is governed by common law and to a certain extent customary laws and trade usages. Therefore, the employer-employee relationship is preserved to the extent that these laws are not contravened. This article is focusing mainly on the employer-employee relationship in the non-civil service (that is sectors subject to the Labour Act and its regulations). In the future, the focus will be on the civil service.

 

The aforementioned directives from employers differ in nature. In some directives, the employers have directed that the employees be vaccinated on or before certain deadlines. In other directives, the employers have threatened the slashing of benefits or the institution of disciplinary proceedings against the unvaccinated employees. As a result, a number of legal questions arise. In this article, the writer will attempt to answer some of the pertinent legal questions. The main issue in this article, is therefore whether or not the employers' directive compelling the employees to be vaccinated are within the confines of the applicable laws.

 

Can an employer legally require employees to get Covid- 19 vaccine?

At common law, an employer has a duty to provide a safe working environment, safe equipment and tools and a safe method of work (SAR & H v Cruywagen 1938 CPD 219 at 229). This may entail the employer's duty to provide a healthy working environment by requiring employees to be vaccinated for Covid-19.

 

This duty is further entrenched in section 6 (1) (d) of the Labour Act (Chapter 28:01) (hereinafter called "the Act") which provides that: "No employer shall require an employee to work under any conditions or situations which are below those prescribed by law or by the conventional practice of the occupation for the protection of such employee's health or safety."

 

This position is also provided for in terms of international labour law. In terms of Article 16 of the Occupational Safety and Health Convention, 1981 (No. 155), employers have the overall responsibility of ensuring that all practicable preventive and protective measures are taken to minimize occupational risks. Zimbabwe ratified this convention in April 2003.

 

From a constitutional law perspective, section 65 (1) of the Constitution of Zimbabwe provides that; "Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage". Fair and safe labour practices and standards entail a safe and healthy work environment. Employees are therefore constitutionally entitled to this right. This provision applies to every employee in both the public sector and the private sector. In the converse, this right entails a duty of the employer to provide fair and safe labour practice and standards which in effect includes the duty to provide a safe and healthy work environment.

 

The main rule within international human rights law is that vaccination, like any other medical intervention, must be based on the recipient's free and informed consent. This rule is, however, not absolute. In Solomakhin v Ukraine, (2012) the European Court of Human Rights (the Court) held that mandatory vaccination interferes with a person's right to integrity protected under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless, the Court concluded such interference may be justified if considered a 'necessity to control the spreading of infectious diseases' (para 36).

 

Coming closer home, Section 35 (2) of the Public Health Act (Chapter 15:17) provides that a health service shall not be provided to a user without the user's informed consent unless the provision of a health service without informed consent is authorized in terms of any law or court order. This means that if there is a law or court order justifying compulsory provision of a health service, then the user's consent shall not be necessary.

 

Logically, requiring an employee to be vaccinated will present employers with a number of employment law challenges regardless of whether the employer relies on a specific contractual obligation as their chosen route or on it being a lawful or reasonable instruction. These challenges include potential discrimination issues (most notably, on the grounds of disability, age, and/or religion/belief) and potential breaches by the employer of its duty of implied trust and confidence which could result in claims for constructive unfair dismissal. There is also a human rights argument linked to an employee's right to respect for their private life.

 

One of the fundamental rights set in Chapter 4 of the Constitution of Zimbabwe is the right to personal security. This right is provided for in section 52 of the Constitution as the right to bodily and psychological integrity which includes the right to freedom from all forms of violence from public and private sources and not to be subjected to medical or scientific experiments, or to the extraction or use of their bodily tissue, among other rights, without one's informed consent. The right not to be vaccinated for Covid 19 purposes without one's informed consent may be implied in this right.

 

However, some Constitutional rights are not absolute. In terms of section 86 (2) of the Constitution, the fundamental rights and freedoms set out in Chapter 4 of the Constitution may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors including the nature of the right or freedom, the purpose of the limitation ( whether it is necessary in the interest of defence, public safety, public order, public morality, public health, regional or town planning or general public interest), the nature and extent of the limitation; the rights and freedoms of others, the relationship between the limitation and its purpose and whether or not there are any less restrictive means of achieving the purpose of limitation.

 

One can therefore safely say the employer's common law right is codified in the Act and the Constitution. In light of section 6 of the Act, requiring employees to work under conditions that are, for purposes of Covid 19, not safe and healthy is, in my view tantamount to requiring the employees to work under conditions that are below those prescribed by law, the law being the common law and the Constitution.

 

The question may be what is a "safe and healthy workplace" in light of the Covid 19 pandemic. It is given that an employer requiring employees to work at a workplace where there is no proper observance of social distancing, sanitizing and face masking, is not only creating an unsafe and unhealthy workplace for purposes of Covid 19, but it is acting in an unlawful way.

The next issue is whether or not requiring vaccinated employees to work at a workplace with unvaccinated employees, contrary to the law. In other words, the question is whether or not the employer by compelling the employees to be vaccinated, will be seeking to comply with his legal duty to create a safe and healthy workplace. In my humble view, depending on the circumstances of each case, the employer may seek to comply with such a legal duty by compelling employees to be vaccinated. Accordingly, in those circumstances, the employer will be entitled to compel the employee to get the jab. Such circumstances may include situations where the nature of work (for example health sector) or nature of clients or unavailability of remote working or advice from medical bodies or the effectiveness of the vaccine in question, reasonably dictate that the vaccine be taken. As has been noted above, the employee's right to be at a safe and healthy workplace conversely means the employer has a duty to create a safe and healthy workplace.

 

In jobs or industries where there are specific legal or conventional practice requirements for certain safety and healthy working environment (possibly covering the need for the employee to be vaccinated), then the absence of such requirements will be contrary to the Act. Accordingly, in those circumstances, the employer will be entitled to compel the employee to get the Covid-19 jab. Accordingly, section 86 (2) of the Constitution limiting the fundamental right to personal security may be successfully relied upon in limiting such a right.

 

Resultantly the employer may be entitled to order or direct an employee to be vaccinated. Since the order may be lawful, the employee has a duty to comply with that lawful order unless he is exempted on the basis of some legitimate reasons. If the employee fails to comply without a legitimate reason, then the employer is entitled to discipline the employee or take other lawful measures. As a general rule, the employer may be entitled to compel the employee to get vaccinated for Covid -19.

 

What are the possible exemptions or exceptions to this general rule?

As briefly alluded to before, the employer is legally entitled to order or direct an employee to be vaccinated. In turn, the employee has a duty to comply with the order unless he is exempted on the basis of some legitimate reasons.

 

There might be countless legitimate reasons or exemptions or exceptions to this general position. For example, an employee may be exempted if he successfully proves that his human right or religious belief is being violated or that he has a genuine medical condition or some other lawful reason rendering vaccination unlawful or unjustifiable in a democratic society. In the event that an employee has any difficulty in appreciating these exceptions, seeking advice from the relevant experts including legal experts, may be helpful. When the exception is upheld, the employer may have to make the necessary arrangements to make sure that the unvaccinated employee works from home or from other separate places. This may keep the workplace safer.

 

In conclusion, although the best approach in the writer's view is to secure the employees' informed consent to be vaccinated first, when, for one reason or the other, such consent is not forthcoming, it may be legally possible for the employer to compel some, if not all, of its employees to take the jab.

 

                                                                       Disclaimer

The contents and suggestions contained in this article are for information purposes only and are not for the purpose of providing specific comprehensive legal advice. If need be, you should contact your lawyer to obtain legal advice with respect to any particular issue or problem mentioned herein. For feedback, our contact details are: Cell 0772 456 954, Tel: + 263-242- 703664/6, 701622, Email: cmavhondo@mhishilaw.co.zw,  Website: www.mhishilaw.co.zw

 

 

COVID-19 AND EMPLOYMENT LAW IN ZIMBABWE

EMPLOYMENT LAW AND THE CORONAVIRUS IN ZIMBABWE: SOME BURNING QUESTIONS AND ANSWERS

Together we can successfully fight this virus!!!!!

By Cephas Mavhondo

 Mhishi Nkomo Legal Practice, Harare

 Date: 31/03/20

                               

Introduction

Coronavirus disease, now otherwise known as COVID-19, was first reported in 2019 in Wuhan City, China. It then spread globally. On the 11^th of February 2020, the World Health Organisation (WHO) officially declared the disease a global pandemic. WHO officially named the disease COVID – 19. Nations across the world panicked as business operations slowed down. This article seeks to look at the impact of the pandemic on the employer-employee legal relationships (labour laws /employment laws) in Zimbabwe.

Background

Before delving into the specific issues relating to the impact of COVID-19, it is worth mentioning that the government of Zimbabwe has taken certain measures in response to the pandemic.  Whether the measures are enough or not is a question for another day. Such measures give a good context to this article. Following the declaration of COVID-19 by WHO as a global pandemic, the government has through SI 76 of 2020 declared that a state of disaster exists in the rural and urban areas in Zimbabwe. This was with effect from 23 March 2020.

On the same day, SI 77 of 2020 was passed. This SI declared COVID-19 a formidable epidemic disease, prohibited public gathering of more than a hundred people, among other things. 

From the measures that are being taken globally and locally, one message is clear; co-operation of everyone is needed.

On the 27^th of March 2020, the President of Zimbabwe announced that the nation shall be under 21 days lockdown effective 30 March 2020.  On the 28^th March 2020, SI 83 of 2020 was promulgated, providing, among other measures, for  the closure of borders and the 21 days national lockdown except for people/businesses involved in rendering essential services.  During this national lockdown, the majority of companies will remain closed while a few offering essential services will be operational subject to social distancing rule and other protocols.

In terms of SI 83 of 2020, essential service (for purposes of the regulations) includes, among other stated services,  hospital services, generation or supply or distribution of electricity, supply or distribution of  water and production of food, fuel or coal.This to a certain extent is consistent with section 102 of the Act  which defines essential services (for purposes of collective job action) as any service the interruption of which endangers immediately the life, personal safety or health of the whole or any part of the public and any such service declared by the Minister of Labour to be an essential service. It is noted that in terms of both SI 83 of 2020 and the Act, the respective Ministers are empowered to declare any other services as essential services.  Given that the Act takes precedence over any other law, other than the Constitution, it is important to understand that in as far as collective job action law is concerned, the Act shall be applied, while  SI 83 of 2020 shall apply in dealing with the issue of  who is allowed to go to work or operate a business  during the lockdown.

Some burning questions

In light of the above, one then wonders what exactly is happening or is going to happen in Zimbabwe in as far as labour laws are concerned. Several questions may arise around changes to employment contracts,  occupational health, payment of remuneration, sick leave, vacation leave, discrimination, government assistance, termination of employment etcetera.  This article will attempt to answer some of the burning questions namely:

a)    What changes are likely to be made to the employment contract?

b)   What remedies are available to the employer where employees refuse to attend work when the employer renders essential services?

c)     What should the employer do when an employee is infected by COVID 19?

d)   Is the employer obliged to continue paying salaries during a lockdown?

e)   What are the legal options available where either party to the employer-employee relationship decides to end the relationship? 

International law and domestic law position

Before answering the above questions, a bit of exposition on the law is important. In respect to labour rights, section 65 of the Constitution of Zimbabwe provides that every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage. Fair and safe labour practices and standards entail a safe and healthy working environment. Employees are therefore constitutionally entitled to this right. This provision applies to every employee in both the public sector and the private sector.

This right is also recognized in international law. In terms of Article 16 of Occupational Safety and Health Convention, 1981 (No. 155), employers have the overall responsibility of ensuring that all practicable preventive and protective measures (e.g protective clothing and adequate information on COVID 19) are taken to minimize occupational risks. Zimbabwe ratified this convention in April 2003.

 Furthermore, section 6 (d) of the Labour Act [Chapter 28;01] (hereinafter called ‘the Act’) provides that “No employer shall require any employee to work under any conditions or situations which are below those prescribed by law or by the conventional practice of the occupation for the protection of such employee`s health or safety”.

In terms of our common law, an employee has the duty to make his or her services available, while the employer has a duty to provide remuneration. The effect of these two corresponding duties is that, except in very exceptional circumstances (e.g when an employee is on sick leave or paid vacation leave), when an employee has not provided the required services, there will be no remuneration for the employee- no work no pay.  Some employers may avoid paying salaries for employees who during the lockdown were not providing service. However, the employees may argue that they wanted to provide service but for the lockdown.

Either the employer or the employee can argue that COVID 19 led to what is called a supervening impossibility making fulfilment of contractual obligations impossible. In contract law, a supervening impossibility can either be a vis majeure (superior force) or casus fortuitous (fortuitous event) which makes the performance of the contract impossible.  Is COVID 19 going to fit in this? The question will be whether or not the impossibility will be viewed objectively as final as opposed to being temporary. If COVID 19 is going to render the performance of any particular contract finally or completely impossible surely, it will fit. The opposite will be true.

The courts have dealt with this issue of impossibility of performance before. BOSHOFF JP in Bischofberger v Van Eyk 1981 (2) SA 607 (WLD) at 611 B-D said:

“When the Court has to decide on the effect of the impossibility of performance on a contract, the Court should first have regard to the general rule that impossibility of performance does in general excuse the performance of a contract, but does not do so in all cases, and must then look to the nature of the contract, the relation of the parties, the circumstances of the case and the nature of the impossibility to see whether the general rule ought, in the particular circumstances of the case, to be applied. In this connection, regard must be had not only to the nature of the contract but also to the causes of the impossibility. If the causes were in the contemplation of the parties, they are generally speaking bound by the contract. If, on the contrary, they were such as no human foresight could have foreseen, the obligations under the contract are extinguished.”

This position was also adopted in our jurisdiction in the  case of  Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe2006 (1) ZLR 9 (S) 

The courts have also made it clear that for supervening impossibility to hold water, the contract must have become finally and completely impossible of performance as opposed to the situation where one party is only temporarily disabled from fulfilling its obligations. See Beretta v Rhodesia Railways Ltd 1947 SR 48 at 49-50; NUST v NUST Academic Staff & Others 2006 (1) ZLR 107 (H) at 109A-D

Proposed answers to some burning questions

What changes are likely to be made to employment contracts following the lockdown?

The national lockdown does not necessarily entail termination of the legal relationship between employer and employee unless the parties agree otherwise. Depending on the nature of the job and the length of the lockdown, parties are at liberty to come up with various measures if they intend to continue with their relationship. Such measures can include the following:

a)    Where possible, the employer can agree with the employees that the employees work from home. This will remove the face to face interaction. This can be done by increased use of e-communication such as e-conferencing thereby making better use of the ICT. This is commonly referred to as telecommuting/remote working.

b)   Where possible employees can go on leave using their vacation leave days as provided for in section 14A of the Act or compassionate leave days as provided for in section 14B of the Act

c)    The parties can agree to review salaries and allowances up or down;

d)   The employer can introduce short-time work and shift systems in terms of the Act

e)   The employer can effect salary deductions in terms of the Act.

What remedies are available to the employer where employees refuse to attend work when the business renders essential services?

This arises in cases where the employee mero motu decides to absent himself from work as a personal health measure. It is up to the employer to demonstrate that it had provided enough safety to the employee, then he can lawfully terminate the contract of employment through disciplinary action. However, this is tricky as COVID 19 is quite a ghost. As it stands, there is less scientific evidence available to such an extent that an employer can guarantee with 100% certainty that an employee is safe. That is why tech companies like Facebook simply closed offices when the pandemic started. In businesses not rendering essential services, should the employee comply with the lockdown laws and stay at home, he cannot be faulted.

What should the employer do when an employee is infected by COVID 19?

When an employee falls sick, soon after reporting the COVID 19 related illness to the employer and the health authorities, the employee is entitled to apply for sick leave in terms of Section 14 of the Act. The employer is therefore obliged to consider the application for sick leave. Where the sickness is prolonged the laws applicable in respect of extension of sick leave shall apply. Such leave should be generously considered.

Is there any liability for the employer’s failure to provide safe and healthy working conditions?

As alluded to above, our common law and international labour laws require that the employer provides safe and healthy working conditions. If the employer fails to do this, he may be liable for damages to the employee if the employee can prove that the employer was responsible for his illness (including COVID 19 related illness).  It is important to note that in terms of common law, the employee has a duty to ensure due care and comply with the employer’s orders regarding safe and healthy working standards and conditions,  otherwise the employer`s liability will be reduced to the extent of the worker’s contributory negligence.

Furthermore, it is an unfair labour practice for an employer to fail to comply with his duty to provide safe and healthy working conditions.

Is an employer obliged to continue paying salaries during the lockdown?

Generally, as long as the employment contract is still in existence and the employee is providing the required services, the employer is obliged to continue paying salaries during the lockdown. However in cases where the employee is no longer rendering services the ‘no work no pay’ principle will apply subject to the applicability of the supervening impossibility defence as discussed above. The common law maxim of ‘no work no pay’ appropriately applies against the employee if the employee has absented himself from work without a reasonable cause.

However, should the lockdown become prolonged, the employer can lawfully terminate the contract of employment through retrenchment on the basis that the company is no longer able to carry the costs. Retrenchment is provided for in terms of section 12 C and 12D in the Labour Act. However, before retrenchment, the employer should consider measures to avoid retrenchments such as short-time work or shift systems.

What are the legal options available where either party to the employment relationship decides to end the relationship? 

The labour laws in Zimbabwe, for example, section 12 of the Act allow either party to an employment contract to terminate the contract on notice in certain circumstances. It, therefore, follows that either party is at liberty to terminate on notice the employment agreement should the need to do so arise. For example, if the employer and the employee fail to agree on new employment terms to respond to COVID 19, the parties can terminate their relationship on notice through a mutual agreement. Alternatively, an employee can resign at any time.

Conclusion

In conclusion, given the questions and proposed answers highlighted in this article, the impact of COVID-19 is likely to be far-reaching. The employer-employee legal relationship will be negatively affected. The need to strategize becomes clear. Long and short term strategies become relevant. For employers this is not an opportunity to drop workers, it is not their fault that we have this pandemic. As such the following options are recommended for employers:

a)     Where possible, the employer can agree with the employees that the employees work from home. This will   remove face to face interaction. This can be done by increased use of e-communication such as e-conferencing thereby making better use of the ICT. This is commonly referred to as telecommuting/remote working.

b)   Where possible employees can go on leave using their vacation leave days as provided for in section 14A of the Act or compassionate leave days as provided for in section 14B of the Act.

c)    The parties can agree to review salaries and allowances up or down;

d)   The employer can introduce short time work and shift systems in terms of the Act.

e)   The employer can effect salary deductions in terms of the Act and the no work no pay principle.

f)     In extreme circumstances and where appropriate, the employer can  terminate the employment relationship through retrenchment or disciplinary action.

For the employees, this is not the time to fake illness or become unavailable. Both parties should be glued to each other and remain focused on the organisational vision, mission, objectives, and goals as a way of fighting this pandemic.

                                                           Disclaimer

The contents and suggestions contained in this article are for information purposes only and are not for the purpose of providing specific comprehensive legal advice. If need be, you should contact  us to obtain advice with respect to any particular issue or problem mentioned herein. Contact details: Cell 0772 456 954,    Tel: + 263-242- 703664/6, 701622, Email: cmavhondo@mhishilaw.co.zw,  Website: www.mhishilaw.co.zw

                                                                     

                                     

SOCIAL MEDIA AND EMPLOYMENT LAW IN ZIMBABWE

Relevant knowledge about the following is necessary:

Interception of Communication Act (Chapter 11:20) eg section 3.

Constitution of Zimbabwe; Section 57 (right to privacy of communication); Section 61 (freedom of expression). 

Labour Act (Chapter 28:01); Section 12B (right not to be unfairly dismissed)

SI 15/06 and other Employment  Codes; misconduct- conduct inconsistent with express or implied terms of the employment contract.

EC Policies or ICT policies vs. section 6 of the Labour Act (unilateral variation of employment conditions)

What is social media?

It is a collective of online communications channels (websites and applications) dedicated to community –based input, interaction, content –sharing and collaboration.Examples; Facebook, Google+, YouTube, Twitter, LinkedIn, Pinterest, WhatsApp, Telegram , WeChat , blogs etc

Use of social media to recruit, (secret screening or background check)

- it is unlawful in France if without employee’s consent

-it may not be unlawful if the information is public.

Use of social media to denigrate or defame employer ; to harass other employee to share confidential information (trade secrets); Defence of privacy inapplicable if ‘Facebook friend’  brings out information. ;South African case of Haliwell v  Holiday Inn Sandton.

-May be a misconduct

Employee taking LinkedIn contacts (collated during employment) away upon termination of employment.

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan .

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernickemployment

 - such contacts held in UK to be owned by employer.; not by employee.

Employer using employee’s Facebook postings to prove fake sick leave

Freedom of expression and right to privacy on social media not always protected.

Employer’s vicarious liability for the actions of an employee on Facebook; Profile message; ‘I am gay’ in the UK case of Otomewo v Carphone Warehouse Ltd .

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan.

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernick

Service of letters, court papers and other documents through social media like Facebook is getting recognition; CMC Woodworking Machinery Pty Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)Morgan .