We previously discussed the potential pushback employers might face in imposing a COVID-19 vaccination policy but is pushback where it ends? The question arises whether there is scope for employees to claim that they have been discriminated against as a result of their failure or refusal to take the COVID-19 vaccine.
On the face of it, a policy requiring that an employee take the COVID-19 vaccine may not be in and of itself discriminatory. Instead, an employee’s refusal to comply with such a policy, and their consequent treatment by their employer as a result of their refusal, may invoke a prohibited ground of discrimination. In the South African employment law context, a prohibition against unfair discrimination in employment policies or practices is set out in section 6 of the Employment Equity Act, 1998 (“EEA”). This prohibition against discrimination extends to both listed and arbitrary grounds.
A mandatory vaccination policy may have the effect of directly or indirectly discriminating against an employee. Direct discrimination takes place where it is clear that the employment policy or practise, or action in terms thereof, explicitly discriminates on a ground prohibited in section 6 of the EEA. For example, a self-evident ground would be a vaccination policy that provides that men will be vaccinated first. In the case of indirect discrimination, the criterion used in an employment policy or practise to differentiate between employees may be ostensibly “neutral” and not be based on a ground mentioned in section 6. However, its effect is that a category or group of persons, protected under a prohibited ground of discrimination, are disproportionally adversely affected by the policy or its application. An example would be where the policy dictates that vaccinations will only take place at lunchtime on Fridays. Although neutral on the face of it, the policy may exclude Muslim employees who attend mosque during this time.
Some unintended discriminatory impacts of a mandatory COVID-19 vaccination policy may include the following:
- Religion, conscience or belief: It is possible that employees may argue that they cannot take the vaccine because of the tenets of their particular religion. They may also argue that they cannot take vaccines based on their “conscience and belief”. All three of these grounds are mentioned in section 6. A policy that does not make provision for the “exemption” of these employees, or an employer taking action against such employees because they refuse to take the vaccine on these grounds could constitute discrimination.
- Age: As things currently stand, and in accordance with the South African government’s COVID-19 vaccine roll-out strategy, individuals who are over the age of 18, are not essential workers, do not work in congregate settings and do not have any co-morbidities will be among the last group of people to be eligible to receive the COVID-19 vaccine. Therefore, some employees may not be able to receive the COVID-19 vaccine if required, even if they have no specific objection to taking it.
- Pregnancy/sex: A policy that requires pregnant employees to take a vaccination could constitute discrimination on the grounds of sex or pregnancy, both of which are grounds mentioned in section 6. It is important to note that some COVID-19 vaccines are not currently recommended for those who are pregnant, breastfeeding or planning to get pregnant.
- It is also possible that employees may argue that it constitutes discrimination to require them to take the vaccine where the employee has an underlying medical condition or is taking medication, that may render it unsafe to take the vaccine. This is not a ground specifically mentioned in section 6 but it could be an “arbitrary ground” as referred to in section 6.
If it is found that the employer has discriminated against an employee on one or more of the grounds mentioned in section 6, the next question is to determine whether this discrimination was fair or unfair.
It is important to note that the EEA specifically provides that distinguishing, excluding, or preferring a person on the basis of an inherent requirement of a job does not constitute unfair discrimination. Employers may, therefore, seek to rely on this exclusion in implementing a mandatory vaccination policy. However, it is important to consider what constitutes an “inherent requirement of a job”. The Labour Court in TDF Network Africa (Pty) Ltd v Faris dealt with this issue in the context of an unfair dismissal claim. In this case, an employee was dismissed for refusing to work on a Saturday. She did so on the basis that her religion prohibited work on a Saturday – she was a Seventh Day Adventist. The Labour Court held that an inherent requirement of a job relates to an inescapable way of performing a job and does not involve mere commercial rationale. Accordingly, the defence of an inherent requirement of a job must be strictly construed, in that:
- the discrimination faced by an employee must fulfil a legitimate work-related purpose and must be reasonably necessary to accomplish that purpose; and
- the employer must show that it is impossible to accommodate the employee without raising an insuperable operational difficulty.
It is not beyond comprehension that proof of having received a COVID-19 vaccine may in future become an inherent requirement of a job for some employers. For example, employees who need to travel for purposes of their day-to-day work, such as salespersons, cross-border truck drivers, cruise ship employees, and the like, could be required to receive the COVID-19 vaccine in the event that points of entry in international jurisdictions require proof of vaccination.
It is also apparent from court decisions that the grounds on which an employer can argue that the discrimination is fair are wider than the narrow “inherent requirement of the job” defence. The fairness of discrimination can be justified on other grounds as well.
The key takeaway for employers is that there is a risk that, in formulating and applying a blanket mandatory COVID-19 vaccination policy, it could be found that the policy or its application is discriminatory. Equally though, the policy or its application could be held to be fair, rational or otherwise justifiable. This may be based on the narrow “inherent requirements of the job” defence, but other broader operational factors may also justify a finding of fairness provided that these are fair and rational.