The thorny issue of mandatory workplace vaccinations will survive constitutional scrutiny, argues labour and constitutional law expert, Halton Cheadle.
Daily Maverick quotes Halton Cheadle as saying he believed a challenge to the constitutionality of a mandatory vaccination policy in the workplace, and even retrenchments on these grounds, would more than likely survive scrutiny by the Constitutional Court – and a growing body of international jurisprudence backed him up on this. Cheadle was speaking during a webinar on the issue. He said he also believed it was legally possible to fire an employee who refused to get vaccinated. Mandatory vaccines for COVID-19 would not infringe constitutional rights, he added, and even if such a policy did, it would be found to be justifiable.
Cheadle said employers who followed the correct procedures, including providing extensive counselling and opportunity, could legally dismiss employees who refused to be vaccinated against COVID-19. Employees could also be required to provide a weekly negative COVID-19 test at their own cost. Asked if an employee could be fired for refusing to get vaccinated against COVID-19, Cheadle said the simple answer was yes.
“The more difficult answer is the human resources complications and issues that this raises,” he replied.
Looking at the US government and New York City examples of dealing with healthcare workers and police officers who refused to be vaccinated, he said they were simply told that they were not entitled to come to work if they were not vaccinated or could not provide a negative COVID-19 test – and they would not be paid. He said the situation was similar to what an employer would do at present if an employee did not wear a mask or showed signs of COVID-19.
“Just say sorry – off you go,” he said, adding that while employees could take sick leave, there was a limit to how much sick leave one could take. “Either get vaccinated or pay for a test – or it would be no work, no pay,” he said.
He said the situation was similar to when a person employed as a driver lost their driver’s licence. “They are no longer capable of working.” He said before this happened, however, employers had to exhaust every avenue to persuade their employees to be vaccinated.
In terms of the Occupational Health and Safety Act, employers had to take “reasonable and practical steps” to maintain and ensure a safe working environment. This requirement also applied to mines in terms of the Mine Health and Safety Act. Cheadle explained that given the “overwhelming evidence” of the efficacy of the COVID-19 vaccines, he had little doubt that a court would see this as a necessary measure to create a safe working environment. He said the court would also consider what the legal position was in other open and democratic societies and any analysis of whether a limitation on human rights was justified would include the scrutiny of comparative legislation and legal authorities.
He explained that the European Court of Human Rights had held that mandatory vaccinations were allowed for the protection of the population against diseases posing a serious risk – and there had been similar decisions in France and Italy. “What is the difference between a jab in the arm and a pill? If we look at the infringement (on human rights) it really isn’t particularly compelling. If the Constitutional Court had to deal with this, it would seem to me that they would have no difficulty whatsoever to determine that it is constitutional,” he added.
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