Fired or hired: What saying no to the vaccine could mean

Can an employee lose their job if they refuse the vaccine? The answer isn’t cut and dried.

The COVID-19 vaccine debate has raged on for almost as long as the virus itself. With fake news, the anti-vaccine movement, confusing dialogues in the media and religious reasons, people are opting out of the vaccine and potentially, could be opting out of their jobs. According to Nicol Myburgh, Head: HCM Business Unit at CRS Technologies, labour legislation specifies that employers are required to ensure their employees have access to a safe work space – a fact which indicates that vaccines should be mandatory – but there are multiple issues to be considered before they can fire anyone for not complying.

“This is not a simple issue. Is this a constitutional right that’s being infringed, or is this a labour law issue? In most situations, companies cannot fire someone for upholding their civil rights,” says Myburgh. “There are numerous boxes that have to be ticked. While employers do have a responsibility to take reasonable action to ensure employee health and safety, they also have to allow for people to uphold their constitutional rights without discrimination.”

Legally, anyone can refuse medical care. To force any kind of medical care on someone is infringing on their constitutional rights. However, if someone refuses to take the vaccine, they could be putting the entire workforce at risk of infection from the virus. They then become a risk to others and other factors come into play. For the company, they then have to ask if there are other ways that this person can contribute to the business. Can they work from home? Are they in close contact with other people? Can they be kept separate from colleagues while still doing their jobs?

“If their role requires that they are in contact with others, or if they cannot do their jobs from home, they are a legitimate risk to others,” says Myburgh. “If the company cannot find any other avenue to resolve the issue when a person refuses to be vaccinated, they can say that further employment has become operationally intolerable and this could lead to their employment being terminated. This is not based on misconduct but on operational requirements.”

It’s a challenge. The onus is on the organisation to protect its people, equally to ensure that an employee can genuinely not complete their job if they do not take the vaccine. A fine line, and it is one that nobody has yet figured out how to cross.

“Until this is tested in labour court, we can only speculate whether or not a person can be dismissed for not being vaccinated,” concludes Myburgh. “To achieve that legitimately, there has to be a policy in place that makes it mandatory for health and safety, risks have to be assessed, and each case has to be approached on its own merit. It’s certainly added a whole new layer of complexity to the pandemic discussion in the workplace.”

For more information, go to www.crs.co.za