The novel corona virus has disrupted all previous conceptions of normalcy, especially work place operations. However with the recent availability of vaccines, employers across all economic sectors may possibly be contemplating whether they should compel employees to vaccinate and possibly return to normalcy. The Labour Act imposes upon the employer an obligation to provide a safe working environment, and the Public Health Act places a universal duty upon all persons not cause harm to the public health. These duties that fall upon the employer are however antagonistic to the fundamental rights and freedoms entrenched under the Constitution. Indeed the pandemic has necessitated a state of public health emergency, however the question that consistently posited, is to what extent the state of public health emergency can limit the operation of an individual's rights and freedoms. This state of friction between competing aims of public policy undoubtedly spill over into labour relations, as a microcosm of the bigger question identified above. The discussion below seeks to identify and interpret the legal provisions that employers may need to keep in mind.
Section 35 of the Public Health Act provides that no health service shall be provided to a person without their informed consent. Consent to treatment in this regard entails that a person must give his or her permission before they receive any type of medical treatment, test or examination. This must be done on the basis of an explanation by a clinician. Consent from a patient is needed regardless of the procedure, whether it's a physical examination, organ donation or something else. The principle of consent is an important part of medical ethics and international human rights law and therefore cannot be violated unjustly. The availability and accessibility of the covid-19 vaccine does not entail that employees or citizens have ceased their freedom to choose either to be vaccinated or not.
For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision. The decision to either consent or not to consent to treatment must be made by the person, and must not be influenced by pressure from medical staff, friends or family. The person must be given all of the information about what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment does not go ahead. The person must be capable of giving consent, which means they must understand the information given to them so that they can use it to make an informed decision. Thus, if an adult has the capacity to make a voluntary and informed decision to consent to or refuse a particular treatment, their decision must be respected.
In so far as employer-employee relations are concerned, both have rights and responsibilities that go both ways. Part of the rights and responsibilities that befall on the employer is that of provision of a hazard free work place in compliance with the law and regulations that have been put in place to safe guard against the widespread of covid-19. The employee on the other hand is obliged to follow employer's health and safety rules, comply with the acts and regulations, co-operate with employer in matters relating to health and safety while being responsible for their own and other's safety especially those that might be affected by their conduct. However, with the regards to covid-19 vaccinations, employer has no right to force or compel employees to get vaccinated for such will constitute a violation of employees right to freedom of choice as well as contravention of the provisions of section 35 of the Public Health Act which provides that for any sort of treatment or medicine to be administered to a user, they ought to have given informed consent without having been forced or compelled to do so.
The employer on the other hand is entitled to abide by the WHO regulations and guidelines on Covid-19 to which have acquired the force of law in Zimbabwe, through the gazetted Covid Regulations, so as curb the spread and transmission of the pandemic. It is therefore inherent upon employers to then formulate self-regulatory policies guided by the guidelines provided for by WHO so as to make sure that their employees as well as the customers are well protected from the risk of being infected or contacting the virus within the scope of trade.
The guiding principles that underpin our public health policy are outlined under s 31 of the Public Health Act, and key amongst them include:-
- Respect for human rights and adherence to both rights and responsibilities
- Precaution and protection of public health when there is uncertainty or incomplete information about a public health risk
Indeed it would seem plausible at first, that mandating employees to vaccinate would be analogous to the duty provide a safe working environment. However, when one considers the issue of informed consent and indeed the fundamental rights and freedoms entrenched under Chapter 4 of the Constitution of Zimbabwe, the guiding principles outlined above would seem to create a divergence between individual human rights and public health rights during any state of public health emergency. Section 32 of the Public Health Act imposes a universal duty to avoid harm to public health. Logic would therefore dictate that vaccination could go a long way in dispensing with this obligation. Furthermore section 86(2) of the Constitution of Zimbabwe allows for the limitation of fundamental rights and freedoms, if the limitation is necessary in the interests of public health.
It should however be noted that such limitation is qualified, as it should be fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity , equality and freedom. The qualification resonates with s35 of the Public Health Act outlined earlier. Regardless of the fact that Zimbabwe is presently in a state of public health emergency, such state of affairs does not impugn the democratic character of the State pronounced under section 1 of the Constitution. It follows that in so far as certain limitations can be placed upon certain fundamental rights and freedoms, the Republic of Zimbabwe is founded upon democratic principles whose core attributes places supreme importance on consent which is synonymous with the rights and freedoms accorded to every individual under Chapter 4 of the Constitution. Furthermore section 32(1) (a) of the Public Health Act is couched is terms that the duty to protect the public health would have been dispensed if due diligence and reasonable precautions have been employed. Before an employer opts to resort to mandating vaccination of employees it is opined there are a host of reasonable options that would still see employers remain complaint to this provision. It has been suggested that instead of compelling vaccination an employer may request frequent testing of its employees. Section 57 (e) of the Constitution of Zimbabwe, which prescribes that the right privacy includes the right not have their health condition disclosed, however such right may be tempered by s39(2)(c) of the Public Health Act which permits for disclosure of a person's health condition in situations where non disclosure would be detrimental to public health. Cognizance is also had of the recent amendment to the Lockdown Regulations, which require testing of all persons desiring to resume business operations. It is however suggested that beyond the initial testing for purposes of resuming operations, employers may have no further right at law to require frequent testing. Again it is opined that the inalienable rights and freedoms, key among them the right to dignity, cannot be limited regardless of the present state of public emergency that continues to persist.
Whilst it is opined herein that an employer cannot compel an employee to get vaccinated; employers should maintain strict compliance with the WHO COVID Guidelines together with the gazetted Covid Regulations. The guidelines provide the parameters for what could be considered as bare minimums i.e. social distancing, fumigation, isolation and sanitization amongst other hygiene measures, which should form the basis of all workplace Covid Guidelines. It is however suggested that there is ample scope to self regulate beyond parameters set out in the WHO Guidelines. Employers may therefore craft industry specific regulations in so far as such regulations do not contravene the law. Indeed there are ample examples of self regulation taking place in our midst, from the requirement for temperature checks upon entering most establishments to the requirement to provide your contact details for contact tracing purposes. Self regulation is therefore a viable alternative to mandating employees to vaccinate.
The novel corona virus has stifled the economy and it is only prudent that employers begin to look into strategies to rebound and scale their respective economic activities. With the vaccine now available locally and with more doses on the way it is opined herein that it would prove imprudent for employers to look to compelling vaccination of its employees. While an employer is vested with duty to provide a safe working environment this article opines that such duty cannot supersede fundamental rights and freedoms enshrined under Chapter 4 of the Constitution. There is also no basis under the Labour Act or the Public Health Act to presume compelling vaccination of employees as a viable option. Key to vaccination under the Public Health Act is consent, which flows from the constitutional dictates that state Zimbabwe is a democratic State, the entrenched fundamental rights and freedoms under Chapter 4 and the declaration that whilst some rights may be limited there remain some inalienable rights that would still be accorded to any individual regardless of the fact that we are presently in a state of public health emergency. However, a plausible solution would be to self-regulate using the WHO guidelines as the benchmark and without stepping outside the confines of the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.