By Lizle Louw, a Partner at Webber Wentzel
05 February 2021 – As South Africa prepares to roll out the Covid-19 vaccine, the most pressing question is: Can mining houses compel employees to be vaccinated?
As South Africa prepares to roll out the Covid-19 vaccine, mining companies will be important centres for distribution, but they will have to be circumspect in imposing vaccines on their employees?
The mining industry has expressed its readiness to participate in administering the vaccine and is eagerly awaiting details on how to do so from the Minister of Health.
In terms of the guidelines recently published by the National Institute for Communicable Diseases (NICD), government will be the sole purchaser of the vaccine. It will maintain an Electronic Vaccine Data System that will co-ordinate, accredit facilities, supply the vaccine, manage pre-booking for vaccination and record the vaccination and other relevant information used to plan, execute, and monitor vaccination. The Minister of Health also announced on 3 January 2021 that there will be a hierarchy, determined by government, in rolling out the vaccine.
In the light of those announcements, mining companies will, at least for now, not be able to procure vaccines and provide them to their employees and community members.
Once the vaccine is freely available, mining companies may decide to provide vaccinations to protect employees’ health and safety at work. In terms of current mine health and safety legislation, there is, however, no legal duty on mining companies to do so.
The question whether employers can make vaccination for employees mandatory only arises after government relinquishes control over who can receive it and when. President Cyril Ramaphosa stated in his address to the nation on 1 February 2021 (and repeated the statement) that no-one would be forced to take the vaccine. This is however not written into any law and does not necessarily preclude an employer from putting a mandatory vaccination policy in place.
The primary piece of legislation that sets out the employer’s duty of care in the mining industry is the Mine Health and Safety Act 29 of 1996, which requires every employer to take reasonably practicable measures to ensure the mine is designed, constructed, and equipped to offer safety and a healthy working environment.
In addition to the Disaster Management Act Regulations that apply during Covid-19 lockdowns, the Chief Inspector of Mines has issued the Mandatory Code of Practice: Prevention, Mitigation and Management of Covid-19 Outbreak and the Department of Health has issued various guidelines to assist employers in implementing measures to prevent and manage Covid-19 in the workplace. All these guidelines are intended to ensure, as far as reasonably practicable, that employees are not exposed to an environment which puts them at risk of exposure to the virus.
Despite the above, putting a mandatory policy in place would be exceptionally difficult to do in practice. If mining companies were to tell their employees they may not come to work unless they have been vaccinated, they would potentially be violating various basic human rights enshrined in the Constitution, including the right to bodily integrity. Employees have different views on the vaccine – some are in favour and some are anti-vaccines for various reasons related to religion, cultural beliefs, or simply not feeling comfortable with the new vaccine etc.
While constitutional rights can be limited, such limitation must be reasonable and justifiable. This requires a detailed assessment of the circumstances of each mining operation to determine whether these constitutional rights of employees who object to vaccination may be limited. These factors include travel arrangements to workplaces, prevalent comorbidities, and labour density in certain areas. Each mine would have to take its own decision, based on its circumstances, and the decision would have to stand the test of reasonableness.
Since the primary reason for having a mandatory vaccination policy would be to protect employees’ health and safety in the workplace, constitutional rights would have to be balanced against combating the pandemic. But the Covid-19 pandemic is unprecedented, and this issue has not been tested in South African courts yet.
A mandatory vaccination policy would also constitute a change to employees’ terms and conditions of employment, which cannot be made unilaterally but requires the consent of both parties. An alternative approach for mining companies may be to embark on a communication drive to explain the benefits of the vaccine to occupational and personal health, so that when the vaccine becomes more readily available, employees will elect to take the vaccine. Employers may also consider to, at that time, revoke special arrangements such as additional Covid-19 related leave due to the availability of a vaccine.