Dear employer, The Bill of Rights, as contained in the South African Constitution, protects the fundamental rights of the individual. 

As the Constitution protects it, the employer should also respect it. With Omicron, it is generally accepted that being vaccinated does not prevent any individual from transmitting or contracting Covid-19. Even the notion that it protects the individual from getting severely sick, is no longer unchallenged. The amended isolation protocols, which no longer require Covid-19 positive, but asymptomatic people to isolate, will make it extremely difficult for any employer to justify excluding any unvaccinated employee from the workplace. 

The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (‘the direction’) does not provide for the blanket introduction of mandatory vaccinations. More so, the direction is not law, but a guideline. Covid-19 is a public health issue and not a workplace issue. Mandatory vaccination policies do not achieve the goal they set out to meet, and can therefore not be justified. An employer must attempt to reasonably accommodate an employee who does not wish to be vaccinated.

Very few employers will be able to prove that they could not reasonably accommodate an employee. The Occupational Health and Safety Act, on which some employers rely, in our view, does not constitute a law of general application, which is required to limit fundamental rights. Adverse effects/vaccine injuries are real but are apparently underreported and employers will be held responsible for this if they have not complied, to the letter, with the direction. The benefits of early treatment, other than the ‘vaccines’, as promoted by government as the only option, are known, but are ignored. 

The introduction of mandatory vaccinations in the workplace, expose employers to drawn out litigation on a number of grounds. Many countries are lifting restrictions, including vaccine mandates, realising that it no longer holds any benefit. This will result in employers being left to carry the can, while government simply walks away.

Gerhard Papenfus is the Chief Executive of the National Employers’ Association of South Africa (NEASA).

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