BY CEPHAS MAVHONDO
The strides made 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 compelling their employees to be vaccinated.
As a result, 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 Organisation (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 programme 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.
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 minimise 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 authorised 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 issue 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, sanitising 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.
- Cephas Mavhondo is a lawyer at Mhishi Nkomo Legal Practice and a council member for Zimbabwe Economics Society.