NO jab no work policy is spreading like a veld fire in many organisations within Zimbabwe and has created conflict with unions and individuals who do not want to be vaccinated for different reasons.
The law requires that an individual must voluntarily consent to receive medical treatment and for the consent to be valid, it must be informed consent. Many employers recognise and respect that right but have put in place measures to mitigate against the impact of Covid-19 at the workplace and one such measure is no jab no work.
One school of thought argues that the employer has a duty to care for his employees and since medical evidence has shown that transmission of Covid-19 to vaccinated people is lower than to unvaccinated ones, employers want all their workers vaccinated.
Further, vaccinated employees are unlikely to get seriously sick. The argument is that those unvaccinated employees are a risk to the workplace in two ways, that is, can be carriers of the disease and infect others easily and unvaccinated employees are likely to take longer away from work in case they fall sick and ultimately can infect others or cause death.
For the above reasons, many employers believe unvaccinated employees should be barred from the workplace. It is this barring of employees from the workplace that creates legal problems if not handled carefully.
Some have sent unvaccinated employees to work from home and provided the necessary tools, others have sent unvaccinated employees on unpaid leave, others have subtly retrenched giving other reasons other than non-vaccination. They couch the retrenchment to look as genuine and legal as possible.
Some employers have used the carrot and stick method where only vaccinated employees receive Covid-19 allowances. Some have held workplace meetings that exclude those working from home and the employers have given the excuse of failure to connect online. Some employees working from home or who are not vaccinated have been overlooked for promotion as the employer argues that the risk of sending a vaccinated employee to the market is lower than an unvaccinated employee as the vaccinated employee even if he catches Covid-19 while out, the chances of being able to drive back are high.
The big question is can an unvaccinated employee be dismissed? Many labour lawyers have argued that while this area is unchartered waters, it is possible to dismiss an employee who refuses to take a Covid-19 vaccine and some of the possible arguments could be to minimise risk of business closure, protecting vaccinated employees, employee has lost capacity to perform contractual duties as customers and clients have said they need proof of vaccination before they deal with staff.
Others have raised the fairness principle enshrined in the constitution arguing that it is unfair for an unvaccinated employee to come to work as it makes the vaccinated employees uncomfortable. Allowing the unvaccinated employee to report to work may contaminate the workplace, which could result in loss of production time and earnings as employees fall sick. However, this does not necessarily mean the vaccinated cannot bring the disease but the probability is low.
In conclusion, employers who exclude unvaccinated employees from work for whatever reason risk being accused of discrimination or unfair dismissal. We shall only have real answers as related legal disputes go through the court.