A response, based on the actual law, to Panda's copy-and-paste letter for workers who wish to not disclose their vaccination status

Your job and the Covid-19 vaccine explained.

A response, based on the actual law, to Panda’s copy-and-paste letter for workers who wish to not disclose their vaccination status
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President Cyril Ramaphosa, in his speech on 28 November, reiterated the importance of vaccination in dealing with the pandemic. He implored all eligible people to get vaccinated and announced that a Governmental Task Team is assessing the possibility of mandatory vaccination for certain areas and/or activities.

The question of mandatory vaccination is one that employers have been grappling with, and which employers are legally empowered to implement — although not without detractors.

A team of lawyers from Webber Wentzel has considered the “Workplace Medical Disclosure Letter — South Africa” recently shared by Panda (Pandemics Data & Analytics).

In broad terms the letter suggests a template response that an employee could use stating that their vaccination status is private, and that they cannot be compelled to disclose their vaccination status.

The Panda letter aims to couch the employee objection within both law and science and offers objecting employees the ability to download a letter response to their employees with several arguments it has prepared on their behalf. Although employees are certainly free to raise the arguments put forward by Panda, employees seeking to use these arguments should note the following:

  • It is incorrect to say that employees cannot be compelled to disclose their medical status. By law this may be required in appropriate circumstances, and this is not unique to Covid-19 vaccination status. In any event, the requirement is not that employees disclose their medical status (they may voluntarily seek to do so in any refusal to be vaccinated) — all that is required is for them to disclose their vaccination status. The distinction is important in law.
  • Every employer has a statutory duty to safeguard the health of their employees while they are at work — many of whom may have comorbidities. The courts have already held that: “There is no bright line between public health and occupational health… the Covid-19 pandemic presents both a public health concern and a[n] occupational health concern. It is a risk for the entire nation. But it presents particular risks and requires particular responses in workplaces…”. There is a significant amount of credible and peer reviewed medical and scientific information available which refutes the medical and scientific information set out in the Panda letter. Many employers are likely to have considered this information and reasonably based their Covid vaccination policies on reputable sources of medical and scientific advice.
  • It is incorrect that the measures that have previously been taken to address other diseases (like HIV, TB or flu) are sufficient to meet the reasonability standard imposed under the Occupational Health and Safety Act (OHSA). HIV cannot be spread simply by being in casual, workplace-appropriate, contact with others and neither TB nor flu have, in recent years at least, ever been categorised as a pandemic. Applying legal principles based on workplace management of these diseases to measures intended to prevent and mitigate the spread of Covid-19 in a workplace is egregious. Also, regarding the statement that Covid-19 vaccines are still in a trial phase and as “research or experimentation on a living person” is incorrect factually — the US Food and Drug Administration has in fact recently approved both the Moderna and Pfizer-BioNTech Covid-19 vaccines and its approval for emergency use in South Africa (as is the case) is entirely legitimate and scientifically rigorous.  This process is used in the context of a public health emergency (such as this is) to accelerate approvals of proven interventions, not to further experiment.
  • Returning to the standards imposed by OHSA, the OHSA standard expressly requires an employer to reassess risks and control measures as new information becomes available and to take measures based on the severity and the scope of the hazard. This alone requires a differentiated approach for employers managing Covid-19. An employer is required to assess the risks to which all employees and the business may be exposed and implement appropriate controls as far as possible. In the face of an available, approved control measure that mitigates harm to employees like vaccination, an employer failing to consider the need to apply this control measure in its workplace will be in breach of its common law, and statutory duties.
  • Although rights to privacy and to bodily integrity are entrenched in the Constitution, the law also recognises that rights may be limited in certain circumstances. Also, importantly, no employees “are punished” as suggested for refusing to vaccinate or refusing to provide their vaccination status. Where this position is adopted by an employee, and the basis of such objection is justifiable, the employer will (and must) seek to reasonably accommodate that employee — see more about this below. Termination of employment will only be contemplated if no accommodation can be found or if the employee refuses to accept the accommodation measures.
  • For an employer to apply a lawful and reasonable policy requiring employees to be vaccinated against Covid-19, an employer will need to know whether its employees are vaccinated or not. This will require the disclosure of private medical information. This information is, however, protected by both the right to privacy in the Constitution (section 14) and by the Protection of Personal Information Act (Popia).
  • Popia was enacted specifically to protect personal information, but also to identify the justifiable limitations on that right. An employee who seeks to rely on the right to privacy must first rely on Popia and cannot directly rely on the Constitution. As vaccination status relates to the health/medical status of an employee, it amounts to Special Personal Information under Popia and may only be processed by an employer in limited circumstances. These circumstances include, where an employer obtains the informed, voluntary, and specific consent of the employee or where the processing of the personal information is necessary for the establishment, exercise, or defence of a right or obligation in law. Following from this, Popia contemplates that, despite an employee’s right to privacy, an employer may request its employees to disclose their vaccination status, to uphold the employer’s occupational health and safety obligations. Further, while employers have a reasonable and lawful basis on which to request vaccination information, if an employee refuses to provide this, the employer may elect to manage this practically by accepting that refusal and regarding such persons as unvaccinated for purposes of any policy.
  • Related to the constitutional arguments put forward, while an employer is required to uphold the right to privacy, bodily integrity, equality, and the right to freedom of conscience, religion, thought, belief, and opinion — these rights are not absolute. They may be limited by a law of general application in instances where it is fair and justifiable to do so. A limitations analysis requires a consideration of the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and whether there are less restrictive means to achieve the purpose. It is important to note, first, that the OHSA is a law of general application, and second that although no court has yet ruled on this issue, several top constitutional experts (both within Webber Wentzel and outside of the firm) have expressly stated that they take the view that a mandatory vaccine policy by an employer within the context of managing and mitigating the spread of Covid-19 infection is almost certain to pass constitutional scrutiny by the courts.
  • Although the Labour Relations Act (LRA) protects an employee from being dismissed if the reason for the dismissal is that the employer discriminated against the employee, Section 187(1)(f) of the LRA which the Panda letter refers to can only be relied upon if employment is terminated and based on unfair discrimination. If an employee refuses to share their vaccination status, the employer will assume that the employee is unvaccinated and apply the policy consistently — unfair discrimination cannot be claimed in this instance.

Also, what the Panda letter doesn’t set out, which may be useful to employees in this situation, is that an employer must by law reasonably accommodate an employee who refuses vaccination.

Refusals in this instance may be based on medical or constitutional grounds. The reason for the refusal must be assessed by the employer to determine the veracity of the employee’s refusal and its reasonableness and, only where the refusal is determined to be justifiable, should steps be taken to reasonably accommodate that employee.

Such accommodation may take many forms. It is only in instances in which reasonable accommodation is not possible, or when the employee refuses to accept the reasonable accommodation, that it may be appropriate to terminate the employment of the employee. Depending on the circumstances, termination may be based on either incapacity, operational requirements or, in less limited instances, misconduct. In each instance, the employer must comply with the requirements of the Code of Good Practice, Dismissal (schedule 8 to the LRA).

Our advice to employees in this scenario who do not want to disclose their vaccination status? Don’t copy and paste a letter from the internet with several factual and legal inaccuracies.

Consider and formulate your own personally held views and beliefs in relation to any vaccination policy (or disclosure of vaccination status) and present these to your employer in the form of a “refusal to be vaccinated”.

Then work with your employer constructively in assessing and validating the reasons and determining ways in which these may be reasonably accommodated.

This approach avoids unnecessary antagonism, and enables an employer to comply with its lawful obligations to all of its employees in what are unprecedented and challenging times for all.

It is our experience that employers are committed to a fair and principled implementation of the policy and will seek to engage constructively with employees. Such engagement may get off on the wrong foot if the Panda letter is the catalyst. DM

Webber Wentzel is a leading full-service law firm operating on the African continent.

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