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This legal alert addresses the issue of whether or not it is possible for an employer to mandate its employees to undergo mandatory COVID-19 vaccinations and whether such an action can be legally supported.
Sections 16 and 17 of the Occupational Health and Safety Act No. 36 of 2010 (“OHSA”)
In terms of section 16 OHSA, an employer has the overriding obligation to, among other things, ensure the health, safety and welfare of its employees. Based on this overriding duty which the employer has and owing to the fact that it is couched in broad terms, it is possible for the employer to request its employees to obtain the COVID-19 vaccinations.
In turn, section 17 of the OHSA provides that an employee has the obligation to, among other things, cooperate with the employer in relation to any duty imposed on the employer, so far as is necessary to enable that duty or requirement of the employer to be performed or complied with. As such, in line with an employee’s duty which is also couched in broad terms, it is possible for an employer to remind its employees to cooperate with its efforts to enable it to comply with its
overriding duties under the OHSA. The employer can therefore persuade its employees to take the vaccinations as doing so will also ensure that the employees comply with their obligations above.
Mandatory COVID-19 Vaccinations
To date, the Zambian government has not implemented/enacted mandatory COVID-19 vaccine requirements. However, we note that on 28 November 2021, the Minister of Health delivered a ministerial statement under which the government announced heightened measures aimed
at averting the fourth wave of the COVID-19 pandemic in Zambia. The measures which took effect on 30 November 2021 included a mandatory requirement for all civil and public service officers/employees to be vaccinated against COVID-19 in order to be admitted to work. This was however subject to consultations with the representative unions of the said civil and public service
Further, access to government offices/buildings by anyone would require the production of a COVID-19 vaccine certificate. We note that the above-mentioned measures were for a period of one month and were subject to review. In addition, we note that the above-mentioned measures have not been included in subsequent ministerial statements by the Ministry of Health and in practice, have not been enforced as public service officers/ employees who are not vaccinated have continued to report for work. In addition, entry for non-vaccinated persons into public buildings has not been restricted. In light of the above and the fact that no regulations or laws have been enacted to bring the measures into force, it can be argued that the directives have no legal effect, albeit an expectation for the public to adhere to them.
Measures that Employers can take against COVID-19
In light of the reasons stated above, mandating an employee to obtain the COVID-19 vaccination is likely to be met with resistance as currently, the government has maintained that obtaining the vaccine is voluntary but is only being recommended. Therefore, an employer can only request its employees to obtain the vaccine but cannot mandate them as there is currently no legal basis for doing so.
Additionally, in terms of section 95 (2) of the Employment Code Act No. 3 of 2019, an employer shall not, in any employment policy, produce or practice discrimination directly or indirectly
against an employee or prospective employee. Therefore, employers cannot formulate rules for vaccinated and unvaccinated individuals which may be viewed as discriminatory in nature. Given
that taking the vaccine is not mandatory, employers may not take any discriminatory action against employees who refuse to obtain the vaccine.
From a practical perspective, an employer may request employees who are unvaccinated to work from home in order to ensure the health and safety of others at the workplace. However, the employer cannot grant certain privileges to vaccinated employees or impose adverse terms and conditions of employment on employees who are not vaccinated. Further, as part of discharging its obligations under the OHSA, an employer would need to implement additional workplace safety measures, such as providing hand soaps and sanitisers, implementing social distancing and the use of face coverings/masks for those employees that are working in the office.