In seeing this debate through the lens of a so-called mandatory vaccination workplace policy, with all its inevitable associations of coercion and a loss of our own decision making power, we may be adding to the insecurities, fears and concerns already prevalent, writes conflict resolution expert Andre Vlok.
"The important thing is moral choice. Evil has to exist along with good, in order that moral choice may operate. Life is sustained by the grinding opposition of moral entities." - Anthony Burgess, A Clockwork Orange
As far as workplace disputes go, the topic of compulsory workplace vaccination policies really brings the entire spectrum of economic arguments, balancing of interests, legal and constitutional considerations and emotions to the negotiating table. The mere mention of it on social media or at the dinner table is bound to bring about an instantaneous display of some very strong emotions and opinions.
In one seemingly specialized question ("Should employers be allowed to implement and enforce mandatory vaccination policies at the workplace?") we find a multitude of concerns and conflict drivers. Let us briefly look at only a few of the questions arising from the developing picture in order to understand the enormity of the stakes involved.
We can do so from three perspectives – the general questions and problems arising, the concerns from the employers' perspective and then the situation as viewed from the employees (and their unions') perspective. Of course, even within these broad categories, we find widely divergent views, but it gives us a sensible point of departure.
While it is most probable that our courts and/or legislative developments will eventually bring complete clarity to the debate, that is of no comfort while the employer tries to continue running her business in the meantime, or the employee gets a notice advising him to be vaccinated within the next thirty days. We need to have this urgent national conversation without further delay, and seek to bring as much clarity as possible to this contentious, hugely important puzzle.
Employers navigating a complex minefield
In general, what would the commercial costs of such a mandatory vaccination policy be for our economy? What would it cost if we do not have such a national policy? Who are the role players, what are the boundaries of liability, has the state of the medical consensus reached such a point where we can safely and responsibly make important decisions binding on the workplace?
Seen from the employer's perspective the question is a complex minefield, a tightrope-walking exercise that seems destined from the outset to be incapable of satisfying all demands and expectations resting on the employer.
What exceptions would an employer have to make for medical reasons? Would such a policy be an unlawful unilateral amendment of the employee's contract? What about the various constitutional rights that everyone will be claiming? What are the implications of such a policy (or the absence thereof) on the employer's legal liability towards employees and clients, what about insurance policies, international partners that are pro- or anti-vaccination? How should the employer respond when its pro-vaccine employees demand that its anti-vaccine employees be disciplined or excluded from the workplace? How does this affect the existing internal disciplinary process?
What complications can we expect from the employee's perspective? The involvement of certain trade unions will no doubt bring specific challenges and questions to the table. The process of debating an internal vaccine policy designed just for a specific employer or even an industry may be delayed or assisted by the presence of such unions. What are employees to make of the complex debates and efforts at misinformation around the science of the vaccines, how safe are these measures, what about employer liability if something should go wrong with such process?
Should we be looking at normal delictual liability requirements or a form of strict liability, can the risk inherent in such a policy (if such a risk there is) be ameliorated by existing or new insurance products or state-operated systems akin to say the workplace compensation systems we already have in place? What would the contractual and disciplinary consequences of such a policy and a refusal by an existing employee be?
Department of Employment and Labour guidelines
Looking at the guidelines issued by the Department of Employment and Labour during June of this year much of these considerations have either not been understood, incorrectly calculated in the issuing of such guidance or not regarded as operational realities. My understanding of such guidance is that the Department has very much adopted a pro-choice policy.
While allowing employers to consult on and implement such a mandatory vaccination policy, I am convinced that these guidelines will not do well under pressure when it gets tested properly, and I am already representing several employers nationally that, for various reasons, believe that a mandatory vaccination policy will have to be implemented while they are experiencing strongly-worded resistance from employees and their representatives.
Internationally we can already find some guidance in the legislative developments and lived experience of some employers. Countries such as the UK, the USA, Australia, Hungary, Indonesia and others have started implementing various degrees of mandatory vaccinations for specific categories of employees, especially health care workers. The concept of mandatory vaccinations is clearly being debated and implemented in several countries, and it would be interesting and informative to keep monitoring these developments to guide our own experiences.
To what extent can such a workplace policy be enforced in any event? The argument that such a policy will be in breach of an individual's constitutional right to bodily integrity and privacy will, while popular on social media, only go so far once this is debated. Our legal system in particular and society in general already recognize and enforce several limitations to such personal rights, and the right to bodily integrity, property and even life itself already have several meaningful limitations. These individual rights can never be absolute, and as with the application of law in general we have here a debate as to where these competing rights can reasonably be limited. It is not as simple as the "my body, my choice" mantra would have us believe.
A way forward
While we wait for greater clarity from our courts or legislation we also have the urgent task of getting our economy back on its feet. Employers need to optimize their workplaces and preventable risks must be managed, without additional pressures from litigation, workplace disputes, absenteeism, unnecessary staff turnover, insurance premium increases and so on. What then can we already bring to this picture to aid everyone involved –
- We can remind ourselves that there are enough social, economic and medical arguments going around so as to allow for people of goodwill to have divergent opinions on this debate,
- That while not all arguments on this are bona fide or of equal stature scientifically, people are never sneered or insulted out of their points of view, and that there are other, more effective conflict tools available to all of us in this debate,
- That as far as possible any system designed for the workplace should be consensus driven, but with effective remedies for the employer in the event of a continued unreasonable refusal of vaccination,
- That no personal right is absolute, and that the functioning of society requires that our cherished personal rights are curtailed at times when doing so adds to the common good,
- That there are already workplaces where this question has been debated and a mandatory vaccination policy has been implemented, with no real disturbance to workplace efficiency or harmony,
- That there are already in place certain guidelines that an employer considering such a policy can use to assess and, if so decided, implement such a policy,
- That factors such as insurance cover, employer and / or state liability or contributions, strict liability and others can bring relatively quick solutions or amelioration to some of the perceived problems,
- That a body of acceptable exclusions can be developed based on medical consensus, and that employers can be encouraged to creatively contribute alternatives to disciplinary action, such as work-from-home options, incentives, shift programs and so on,
- That current conflict can be further minimized with clearly drafted and explained contracts for newly appointed employees,
- That using s189 of the LRA to address this debate and to retrench unwilling employees due to operational requirements may arguably bring some solutions to the negotiating table,
In seeing this debate through the lens of a so-called mandatory vaccination workplace policy, with all its inevitable associations of coercion and a loss of our own decision making power, we may be adding to the insecurities, fears and concerns already prevalent. I believe that it is more constructive and accurate to approach the challenge with the nuance that it deserves and requires, and to rather be dealing with the consequences of choosing not to be vaccinated. It is a relatively unique array of questions and problems, but our existing tools, to be found in science, law, workplace conflict systems design and other disciplines, should be up to this important task.
- Andre Vlok is a negotiator, conflict and employment dispute specialist and based in Port Elizabeth.
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