Mandatory COVID-19 Vaccination: to adopt or not as a policy in the workplace?

In March 2020 the World Health Organization declared Coronavirus (Covid-19) outbreak a pandemic. As a mitigating factor, there was a rallying call to all governments and societies to take action by way of detecting, testing and isolating to reduce the rate of infection. In the last two (2) years, new variants of the coronavirus have been identified and continue to be investigated. New developments emerged in 2021 with the formulation and circulation of the Covid-19 vaccine which was made available to all in the Country. However, the uptake has been slow.

Kenya’s Ministry of Health announced its enforcement of ‘no mask, no service’ campaign. It is reported that a confidential circular was issued to all Principal Secretaries and Accounting Officers by Civil Service boss Mr. Joseph Kinyua, directing all public servants vaccinated by August 23, 2021.  Anyone who defied the directive was to face disciplinary action.

Nevertheless, there is a fraction of the society who believe that the vaccination exercise should not be mandatory, riding on the principle of autonomous decision making which connotes that every person has the right and value to preserve his ability to make informed decisions which justify his actions. These decisions should be made free from an employers’ undue coercion on matters bordering on employees’ private life.

While studies are still ongoing across the world, there have been incidences where vaccines have been reported to have hugely contributed to the mitigation of the effects of the virus. There have similarly been reported incidences of reinfection on vaccinated persons. As such there is not yet a conclusive scientific position on the issue.

Mandatory Covid Vaccine in the Workplace

To manoeuvre these murky waters of legality and return to normalcy for business continuity, organizations are encouraging their employees to get vaccinated against Corona-virus in a bid to create safe working environments. However, the quagmire is whether to make the vaccine mandatory or not especially where there is in-person contact as the effects of coronavirus continue to take a toll with a number of them witnessing a decline in productivity and loss of life.

Kenya’s legal framework governing employer-employee relationship is comprised of a multiplicity of statutes and regulations. For purposes of the present assessment, we highlight the following key sources: the Employment Act, which provides for the basic conditions of employment and the Occupational Safety and Health Act which provides for the safety, health and welfare of workers and all persons lawfully present at workplace. A question then arises, is a safe, healthy and conducive environment fostered by imposing a mandatory employee vaccination?

To balance these rights and obligations organizations should in the first instance, make available  the basic prevention mechanisms such as medical masks, hand sanitizers and/or watering points for washing hands and adequate ventilation on its premises to lower transmission of the virus. In endangering environments, it would be prudent for an organization to review the workforce and establish roles categorized as essential and high risk to exposure before issuance of a directive on mandatory vaccination.

In order to formulate policies that will pass legal scrutiny on mandatory vaccination, an organization must establish that the basic prevention measures are insufficient to curb spread of the virus and that the compulsory vaccination is a work-related necessity consistent with the objectives of the employer’s business in whose absence, the organization’s workforce would be severely crippled. Additionally, employees’ views and participation should be taken into account while developing the internal policies. The policy may give the organization flexibility to deal with any exceptional circumstances such as employees that may have medical conditions that may be aggravated by wearing a mask e.g., due to a pre-existing respiratory condition supported by a medical report. Once adopted, the policy should be given wide circulation amongst the employees for compliance.

An organization may also undertake a survey and compile a list of employees willing to be vaccinated or otherwise. In doing so however, the organization should be guided by the principles on data collection under the Data Protection Act as a de-risking strategy to protect both the safety of the employees and the economic security of an organization for business continuity. It is noteworthy, for this exercise to conform with the law, the purpose and use of such data must be clearly communicated to employees beforehand.

In extreme circumstances an employee who refuses to adhere to workplace safety policy to include compliance with government directives such as wearing a mask, may not justify a disciplinary process but an organization may deny access to the office premises and subsequently mark the employee absent and the measures for absentia under the organizations’ human resource policy.

Internationally, the European Convention on Human Rights, provides the right to physical and psychological integrity (subsumed within Article 8 as the right to respect for private and family life), which would directly contradict any mandatory vaccination request made by an employer to its workforce.

Conclusion

Against the foregoing, it is not legally permissible for an employer to compel its employees to take the Covid-19 vaccine before returning to the office. Organizations should find means of encouraging increased uptake of the vaccine amongst its employees.