Davies Ndumiso Sibanda, Labour Matters
WHILE the debate on whether employees have a right to refuse or accept to be vaccinated against Covid-19 is ongoing, I have decided to look at some of the key issues on whether or not to be vaccinated.

The starting point is that an employer has a duty to care and in terms of Nssa rules, it is a legal requirement for the employer to ensure that the workplace is safe for all employees. This takes us to the question of whether or not an unvaccinated employee is a risk to others and customers.

I think that debate is now exhausted as an unvaccinated employee is a risk to himself or herself, colleagues and customers.

Where a worker refuses to be vaccinated there is no doubt that he or she will be exercising her legal right. The challenge is how to balance that right with the employer’s right and duty to care for other employees who have been vaccinated, customers and clients. Should the employee put on a badge that says “I am not vaccinated or I am vaccinated” and then clients choose who attends to them. Definitely that would not work. What if an unvaccinated employee catches Covid-19, infects others and some die or a customer dies with contact tracing putting the unvaccinated employee as the source. This will then be the business of the courts to decide liability if any, however, no employer wants to carry the risk.

So many possible solutions have been put forward. However, there is very little jurisprudence in the area as most countries have not fully vaccinated their populations.

There are now a few cases of disputes over vaccinations, where some employers like hospitals have made it mandatory for all employees to be vaccinated to protect others and patients.

I foresee pressure groups, individuals and employers going to court over these matters.

Our Constitution requires the employer to care for their workers and so does the Labour Act and related regulations. In short, the workplace has to be safe including minimising the risk of employees catching Covid-19. In addition, employees have an implied duty to care for each other.

In my view, where the vaccine has been made available and the employee has refused to take it for whatever reason, the employer will have to evaluate if having unvaccinated employees could cause undue hardships for the business. If it does then the employer cannot allow for the operations to be negatively affected.

The best way out in my opinion is to retrench the employee and demonstrate to the Retrenchment Board why the business will be crippled or at risk by having an unvaccinated employee. Which means the retrenchment is for operational reasons and this is allowed by Zimbabwean labour laws.

The retrenchment route remains risky as other constitutional and civil liberties issues could arise and it will be up to the courts to decide how to balance the business and individual rights, given that the right to work is not an absolute right.

Given that we do not know how long and what direction and shape Covid-19 will take, the retrenchment route in my opinion should be considered after other options such as allowing employees to work from home, educating employees, giving incentives to take the vaccine and others.

Above all the organisation must craft a Covid-19 vaccination policy that talks to business interests, meets legal requirements, provides for worker education on Covid-19 vaccination and also addresses the interests of those who do not want to be vaccinated.

Some have argued the Code of Conduct can be used to dismiss someone who refuses to be vaccinated for incapacity, like a driver who loses his driver’s licence or lawyer who loses his practising certificate.

The argument is that the employee’s conduct is inconsistent with implied conditions of his contract of employment, which requires him to present himself at work in a manner that is safe to others and customers.

While this is possible, it will depend on the arguments raised and the decisions of the courts. In conclusion, this is a developing area with many emerging and unanswered questions on what to do if an employee refuses to be vaccinated, given that the employee has a duty to care towards colleagues and the employer has a duty to care towards all employees and related public. We shall keep learning as we go.