Jab for Job-a case of Covid vaccination in the workplace

No health service shall be offered to a person without their informed permission, according to Section 35 of the Public Health Act. In this case, consent to treatment means that a person must provide their permission before receiving any form of medical treatment, test, or examination. Vaccination is clearly a health service that falls under the Act's jurisdiction. Despite the availability of the vaccination, a person must consent to receive it, according to a clear reading of this provision.

The rights guaranteed by the Constitution are not absolute. According to Section 86 of the Constitution, rights can be limited first and foremost by legislation, common law, and customary law that is impersonal, applies equally to all, and is not arbitrary in its application. Second, constitutional rights should be limited for a rationale that makes sense in a democratic society. This means that the state may enact vaccination legislation that are mandatory. Jacobson v. Massachusetts, a decision decided by the United States Supreme Court in 1905, established the ability of the state to enforce immunization. That case arose in the midst of an outbreak of smallpox in Cambridge, Massachusetts, in 1902.

When it comes to employer-employee relationships, both parties have rights and duties. Part of the rights and responsibilities that fall on the employer include providing a hazard-free work environment in accordance with the laws and regulations in place to prevent the spread of covid-19. Employees, on the other hand, are required to follow the employer's health and safety rules, to comply with all applicable laws and regulations, to cooperate with the employer in matters of health and safety, and to be responsible for their own and others' safety, particularly those who may be harmed by their actions.

However, in the case of covid-19 vaccinations, employers have no right to force or compel employees to get vaccinated, as this would be a violation of the employees' right to freedom of choice, as well as a violation of section 35 of the Public Health Act, which states that any treatment or medicine administered to a user must be given with informed consent, without being forced or compelled to do so.

The employer, on the other hand, is required to follow the WHO standards and guidelines on Covid-19, which have become law in Zimbabwe through the gazetted Covid Regulations, in order to prevent the pandemic's spread and transmission. As a result, it is incumbent on employers to develop self-regulatory policies based on WHO principles to ensure that their staff, as well as their customers, are effectively protected against the danger of becoming infected or touching the virus while conducting business.

At first glance, requiring employees to get vaccinated appears to be equivalent to the obligation to offer a safe working environment. When considering the issue of informed consent, as well as the fundamental rights and freedoms enshrined in Chapter 4 of the Zimbabwean Constitution, the guiding principles outlined above appear to create a conflict between individual human rights and public health rights during any state of public health emergency. The Public Health Act, Section 32, establishes a general duty to protect public health. As a result, vaccination would appear to be a viable option for avoiding this duty. Furthermore section 86(2) of the Constitution of Zimbabwe allows for the limitation of fundamental rights and freedoms, if the limitation is necessary in the interests of public health.

Before an employer resorts to requiring employee vaccination, it is suggested that there are a number of reasonable alternatives that would allow employers to remain compliant with this regulation. Instead of requiring vaccination, it has been suggested that employers require periodic testing of their personnel. The right to privacy includes the right not to have one's health condition disclosed, according to Section 57 (e) of the Zimbabwean Constitution. However, this right may be tempered by Section 39(2)(c) of the Public Health Act, which allows for disclosure of a person's health condition in situations where non-disclosure would be harmful to public health. Cognizance is also had of the recent amendment to the Lockdown Regulations, which require testing of all persons desiring to resume business operations.

The economy has been hampered by the novel corona virus, and it is only prudent that businesses begin to consider measures to recover and scale their operations. With the vaccine now available locally and more doses on the way, it is suggested that companies refrain from requiring mandatory immunization of their employees. While an employer has an obligation to ensure a safe working environment, according to this article, that duty cannot outweigh fundamental rights and freedoms guaranteed by Chapter 4 of the Constitution. There is also no foundation in the Labour Act or the Public Health Act to assume that forcing employees to be vaccinated is a viable option.

Consent is required for vaccination under the Public Health Act, which stems from the constitutional mandate that Zimbabwe is a democratic state, the enshrined fundamental rights and freedoms under Chapter 4, and the declaration that while some rights may be limited, there are some inalienable rights that would still be accorded to any individual regardless of the current state of affairs. However, a viable alternative would be to self-regulate utilizing the WHO principles as a guideline while remaining inside the legal framework.

This brings us back full circle to the notion of a ‘No vaccination, No work’ policy. As I understand it, employers are not saying you must be vaccinated. They are saying if you choose not to be vaccinated, there are consequences.