At common law, employers have an obligation to provide a safe and secure working environment for their employees. Therefore, employers may consider a mandatory vaccination policy as a measure to protect the safety and health of all employees in the workplace.
Here are points to consider before taking such a step:
Can You Compel Your Employees To Vaccinate?
There is no legislation that requires all persons to be vaccinated against Covid-19 in Botswana. At the same time, our extant employment law does not explicitly prohibit adoption of mandatory vaccination policies in the workplace. Employees may however validly object to receiving a mandatory vaccine on the basis of medical and/or religious grounds.
Are There Any Potential Legal Risks?
YES, compulsory vaccination policies may lead to the following claims;
Human rights claims – In terms of section 11 of the Botswana constitution everyone has a right to freedom of religion, belief, and opinion. This includes the belief or opinion held by employees that the vaccine will be to their disadvantage. Employees may question the constitutionality of compulsory vaccination policies and argue that such violate their right to freedom of religion, belief, and their opinion based on medical concerns, moral objections, religious reasons, or other grounds that cannot be merely disregarded. These rights must be balanced against the effects of covid-19 as a global pandemic.
Contractual claims – most employment contracts do not provide for compulsory vaccination, let alone Covid-19 protocols. Therefore, compelling employees to be vaccinated without them agreeing to such terms could amount to breach of contract. Employers would therefore be best placed to consult with employees or their unions on any change to employment terms brought about by Covid-19 and protocols such as vaccination policies or other preventative methods that do not cause undue hardship, like working from home, social distancing, putting on masks and frequent testing.
Can You terminate An Employee Who Refuses To Vaccinate?
NO, as long as there is no legislation that compels Covid-19 vaccination in Botswana, terminating a contract of employment of an employee on grounds of refusal to vaccinate might expose an employer to litigation. It may be beneficial to encourage employees to vaccinate but not require or compel them to, as the most effective vaccination programs are by consent, not by compulsion.