The Sunday Mail
Alexandra Mliswa & Takudzwa Mathende
THE emergence of the Covid-19 pandemic has impacted society and businesses in many ways.
To ensure business continuity and productivity, local employers have started to implement mandatory vaccination for employees to access workplaces.
This means failure to get vaccinated could result in the loss of employment for many who are already battling to make ends meet in a challenging economy.
Those who are against mandatory vaccination have sought legal recourse, some through their trade unions. For instance, just recently, the Zimbabwe Congress of Trade Unions (ZCTU) filed an application against six companies and Government, alleging that they were infringing on the fundamental human rights of employees by forcing them to take the Covid-19 vaccine.
ZCTU complained of other coercive behaviour by employers such as booking employees for en bloc vaccinations without their consent and/or insisting on Covid-19 testing every fortnight. Against this backdrop, there are two questions that come to mind: Is this allowed (or legal) and, secondly, should it be allowed?
Before the legalities are explored, it is important to understand these issues from a socio-ethical perspective.
Ideally, businesses should always operate through the lens of a corporate citizenship perspective, and this should remain the same in view of the Covid-19 pandemic.
Corporate citizenship refers to a company’s responsibilities toward society aimed at producing higher standards of living and quality of life for the communities that surround them, while maintaining profitability for stockholders and stakeholders.
This means that businesses’ actions should meet both legal and social expectations.
If business actions are against such expectations, then they run the risk of social and legal action (like the ZCTU case mentioned earlier).
Whether the call for mandatory vaccination by companies is supported by the corporate citizenship is really a matter of perspective, a balance can be found in the ethos of ethical business practice. Ethical business practice encourages companies to operate in ways that serve their own interests, as well as those of the communities that they affect.
CSR intends to improve the quality of life for business stakeholders, which include employees, customers and communities.
In line with the principles of CSR, businesses should come up with Employee Assistance and Employee Wellness Programmes (EAPs and EWPs) to address the impact of Covid-19 on employees.
Presently, “no vaccination, no job” is the song being sung, but no meaningful employee engagements have been initiated by employers. The Employee Wellness Programmes (EWPs) are work-based advisory, counselling and support programmes which provide life, health, performance and wellness management services to employees free of charge.
Having healthy employees has clear financial benefits and can reduce health care costs for employers.
Healthy employees are less prone to sudden illness and stress, leading to greater productivity, increased morale and better relationships.
EWPs can also be used as a means to educate employees on the Covid-19 vaccination and provide answers to any questions that they might have about vaccination.
This could find more and more employees opting for vaccination as opposed to the aggressive and coercive approach currently used by employers. Related to EWPs, but still distinct, are Employee Assistance Programmes (EAPs). These are employee benefit programmes offered by employers to enable employees deal with personal problems that may adversely impact their work performance, health and well-being. In this instance, the Covid-19 risk allowances that some employers were offering in the beginning, but have since withdrawn, are an example of an EAP.
Employee support programmes as a form of CSR are not a once-off project. Ideally, companies should have a stand-alone unit within their Human Resources departments that deal with EWPs and EAPs.
The concern for the employee wellness is continuous practice that is an integral part of ethical business practice.
Studies show that when CSR is embedded in daily business practices, it improves the company’s image and simultaneously increases profits. Companies can provide Covid-19 health and safety information, guidance, support and provision of Personal Protective Equipment (PPE) such as masks and sanitisers.
Companies can also provide Covid-19 vaccinations without aggressively coercing employees to take them.
These seemingly small efforts by companies will benefit society at macro level, and ultimately lead to the much-needed transformation of corporate culture in Zimbabwe.
Employers can take lessons learned from the HIV/AIDS pandemic and apply them to Covid-19. In both cases, a lack of public health guidance left the public vulnerable, resulting in the loss of many lives.
With HIV/AIDS, there was legislative development, which led to the National AIDS Council and the National AIDS Levy that contributed immensely to combating the pandemic.
Non-state actors took the initiative and came up with the Zimbabwe Business Council on AIDS, which championed employers’ response to HIV/AIDS through developing policies and coordinating HIVAIDS Employee Wellness programmes in the workplaces.
Covid-19 does not show any signs of leaving anytime soon and so the same approach should be taken.
Is It legal in Zimbabwe?
As it stands, Government has not enacted any law that makes vaccination compulsory; however, its pro-vaccination policy is loud and clear and based on this.
Employers have taken a hard stance against employees who have opted out of Covid-19 vaccinations regardless of their reasons for doing so.
Given these developments, the topical issue is whether employers should be allowed to make Covid-19 vaccinations mandatory for employees on pain of loss of employment. The significant pieces of legislation to look at are The Labour Act Chapter 28:01 and The Public Health Act Chapter 15:17.
In terms of the Labour Act, the employer has a duty to ensure the health and safety of all employees. Amongst other things, the employer must provide a safe and healthy work environment for all employees.
Exposing employees to Covid-19 obviously breaches this duty – this in itself can justify an argument for mandatory vaccination of employees. On the other hand, Section 35 of the Public Health Act provides that “no health service shall be provided to a person without their informed consent”, and vaccination falls under a health service in terms of the Public Health Act. So, what then constitutes informed consent and what differentiates it from general consent? Without getting too technical, informed consent can only occur once a person is sufficiently educated on the nature of their decision together with all possible risks and benefits that are associated with the said decision.
General consent means to agree without explanation and is required in minor or less invasive instances. Both general and informed consent must be voluntarily or freely given, meaning without any form of coercion or duress. As it stands, employers cannot fire employees for being unvaccinated but they can put them on unpaid leave like what OK Zimbabwe and Tel One have done, which is of course a pressure tactic to ensure employees get vaccinated. ‘Pressure’ violates the principles of consent as it is no longer free or voluntary.
What about human rights?
The Constitution is the supreme law of the land. It contains a list of fundamental human rights. Chapter 4: 44 of this supreme law states that everyone has a duty to respect, protect, promote and fulfil these rights.
Those that oppose mandatory vaccination argue that certain fundamental human rights would be infringed, namely Section 51, which is the right to human dignity; Section 57, the right to privacy; and Section 60, the right to freedom of conscience. The rights in Chapter 4 are not absolute and can be limited through a law of general application as provided for in Chapter 5 of the Constitution.
A law of general application is a law that must be applied equally to all persons, not selectively or arbitrarily. In addition, the limitation must be ’fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, human dignity, equality and freedom’.
