COVID-19 and the law
As we mark the one-year anniversary of the initial hard lockdown relating to COVID-19, people are still concerned about their work and their health.
Can an employer insist that an employee work from their office, if the employee has concerns about contracting COVID-19?
If the employer has taken the necessary precautions and issues a reasonable instruction to work on-site, the employee is obliged to follow the instructions or face the consequences of failing to comply.
While there are several South Africans waiting for their chance to get vaccinated against COVID-19, just as many simply refuse to be inoculated. The President made it clear that the vaccine is voluntary and people have the right of refusal.
Currently, there are no firm regulations are in place regarding international and there is talk that some countries may require travellers to produce a COVID-19 vaccination passport. There is also the possibility that pubs and restaurants could also refuse entry to people who have not been vaccinated.
While the roll-out of the vaccine to the general public is still being finalised, the questions arise:
- Can an employer force you to be vaccinated?
- Can an employee be dismissed if they refuse to be vaccinated?
- Can a job offer be withdrawn if someone refuses to be vaccinated?
Making a COVID-19 vaccination mandatory as a condition of employment seems unwise. However, the health and safety of all the employees need to be considered juxtaposed to the individual’s rights.
Laws that will be considered in these cases, should they reach the courts are the Disaster Management Act, the Occupational Health and Safety Act, the Mine Health and Safety Act, and other legislation pieces, including the Labour Relations Act (the LRA).
Dismissing an employee on “any other arbitrary ground” according to section 187(1)(f) of the LRA makes it automatically unfair.
Depending on the workplace health risks employers should create a COVID-19 vaccination policy. Not hiring or dismissing a person based on their vaccination status is akin to discrimination and cost the company dearly.