Global efforts have successfully developed both expedited means of testing for the COVID-19 virus and, more recently, vaccines.
Employers may thus wish to explore the introduction of workplace policies which formalise mandatory testing and vaccination protocols in order to restore their workplaces to some level of normality, particularly workplaces where remote working is not suitable.
Click here to read our full piece, in which we attempt to give employers some guidance as to how to approach these issues. We must however stress at the outset that these questions are unprecedented and throw into stark relief the competing rights of individuals, their employers and the public at large. We also appreciate that a number of the issues involve moral and ethical considerations that are difficult, if not impossible, to resolve.
In summary:
- In general, employees may not be dismissed or subjected to material adverse action in the workplace for refusing to undergo a vaccination.
- Whilst there are circumstances under which an employer would be justified in taking adverse action against an employee who refuses to undergo a COVID-19 vaccination, such cases would be exceptional, and employers would do well to obtain case specific advice before introducing workplace policies. It is likely that other forms of incentive (such as public awareness campaigns and ‘vaccination passports’ for international travel) will be more successful to increase the uptake of vaccinations.
- Employee testing and screening, including enquires as to vaccinations would constitute medical testing under the EEA, but would in all likelihood be justifiable given the considerable risks attendant upon COVID-19 transmission.
- Employers will need to ensure compliance with POPI when obtaining employee medical data.
