Disciplinary action for refusing to vaccinate

Many employers are considering adopting policies on vaccination for their workforces, and some such policies include provisions on disciplinary action for refusing to vaccinate.

But when can an employer impose disciplinary action for refusing to vaccinate? The answer to this question is not clear-cut. Employees have the right to freedom of belief, and some employees may refuse to vaccinate on religious grounds. They may also have a valid medical reason not to vaccinate. For example, in the first trimester of pregnancy, covid-19 vaccines are not advisable for pregnant women.

If an employee refuses to vaccinate in such circumstances, the employer can’t take disciplinary action against the employee, because the employee’s refusal will be justified.

However, where the employee refuses to vaccinate without a good reason, the employer may take disciplinary action for refusing to get a covid-19 vaccine. This is because by refusing to vaccinate, that employee is placing the lives and safety of other employees at risk, as that employee is more vulnerable to contracting covid-19 and transmitting it to others in the workplace. This can also undermine the employer’s compliance with its obligations to ensure a healthy and safe working environment as required under the Occupational Health and Safety Act.

There is, however, one exception to this. If the employee who refuses to vaccinate, elects instead to produce a negative covid-19 test result (at his or her own expense) which is sufficiently recent to exclude the risk of that person entering the workplace with covid-19, the employer would have difficulty justifying disciplinary action for a refusal to vaccinate.

In summary, the requirement to vaccinate and how to deal with it, is uncharted territory for employers in South Africa and worldwide, and employers must carefully consider the circumstances of every case in deciding whether or not disciplinary action is warranted.