BY PHYLLIS MBANJE
As the stampede for the Covid-19 vaccine gathers momentum, most employers in Zimbabwe following the world trend, are taking the hard stance to compel their employees to take the jab.
But the move to make the jab mandatory may really not be as simple as it appears, littered as it is with rights issues that make it a legal minefield.
There are also many freedoms and rights that are at great risk of violation, in some cases the rights abuses being so flagrant it is frightful.
And, besides the legal issues, there still is no guarantee that vaccination makes the workplace a safe place vis a vis Covid-19, creating yet another case against this mandatory vaccination.
Rodgers Matsikidze, a Harare-based legal practitioner, says the issue of vaccination is a contentious matter sandwiched in three fields of law, namely constitutional rights, employment law and public health law.
The constitution of Zimbabwe, he says, provides for a number of rights, including those cited in Section 56(3) which provides that: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.”
Secondly Section 57 of the constitution says: “Every person has the right to privacy, which includes the right not to have their health condition disclosed”, while Section 60 provides for: “Freedom of conscience”. It clearly states that: “every person has the right to freedom of conscience, which includes freedom of thought, opinion, religion or belief; and freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.”
Matsikidze said these provisions clearly give one the right to refuse to be vaccinated, which right needs to be respected.
With respect to labour laws, Matsikidze states that: “…there are other rights applicable to other persons; for example section 65 labour rights which states that ‘every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage,”
This, according to Matsikidze, means that it is the obligation of the employer to provide safe working conditions for employees.
“The employer cannot expose other employees (to disease) because employee X and Y under sections 53,57 and 60 are arguing that they have rights not to be discriminated against, or rights to privacy or rights to freedom of conscience. Their rights are also looked under the auspices of Section 86: Limitation of rights and freedoms which states:
“The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.”
Matsikidze also spoke about the implications to public safety and public health.
He quoted sections of the Act and says the minister may make regulations where there are infectious, notifiable diseases and pandemics to control the spread of the same.
He said a law may be crafted to ensure that those that are not vaccinated do not get to public places, workplaces, and shops.
In instances such as these, the law would not have really forced people to take the jab, but a push would have been made through restrictions to be in certain needful public places.
“So, one will not be forced to get vaccinated but your enjoyment of certain rights in public health and safety interest may be restricted,” he said.
“The law on employment is very clear that no work, no pay and so the employer has a right in those circumstances to grant an employee paid or unpaid leave.
“An employee that is not vaccinated may decide to go to work and his vaccinated colleagues may say we are not coming to work to mix with unvaccinated workmates. What would the employer do in such circumstances?
Another lawyer who declined to be named said the government itself did not force people to be vaccinated and, therefore, there was no justification any employer seeking to force employees to be vaccinated.
“One cannot be terminated from work on such grounds (of not being vaccinated), however if it happens there is recourse within the Labour Court and you may be reinstated with full benefits given the fact that section 12B of the Labour Act states the conditions upon which one may be dismissed and this excludes being vaccinated for a certain ailment,” he said.
He, however, said it should be noted that since the Covid-19 pandemic was a serious threat, the employer had to first consult with the employees and put it in writing and notice in a period of six months.
“If that is done then they have the right to dismiss the employees,” he said.
In South Africa the same debate is playing out with many South Africans opting not to be vaccinated for various reasons, but the employers are insisting on people being vaccinated.
It remains to be seen how employers will deal with situations where some people cannot be vaccinated due to medical reasons.
For example, people living with HIV and Aids, who are unstable cannot be vaccinated and that would mean forcibly declaring their status to the employer.
So the question that begs to be answered is the extent to which the state of public health emergency can limit the operation of an individual’s rights and freedoms.