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
