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The legality of mandatory vaccination policies

As the Covid vaccinations are rolling out there is much debate surrounding the legality of implementing a mandatory vaccination policy in the workplace. There seems to be very little consensus on what the legal approach to implementing such policies will be. In the absence of any legislation or case-law on the matter, it will have to be determined on a case-to-case basis.

There is a common law duty on an employer to ensure a healthy and safe working environment for all employees. This duty requires of the employer to take reasonable steps to ensure the safeness of the workplace. The obligation will have to be balanced with the employees’ constitutional right to bodily integrity, religion and culture.

The Constitution allows for the limitation of a right to the extent that the limitation is reasonable and justifiable. In determining what is reasonable, it should be considered whether there are less invasive steps than implementing a mandatory vaccination policy which can be taken. If the workplace is a low-risk environment the wearing of masks, maintaining social distance and regular sanitizing may be sufficient to adhere to the employer’s duty to take reasonable steps to ensure a safe and healthy working environment. This will not be the case in a high-risk environment such as medical workers or employers with a large staff compliment who work in close proximity to one another. In the case of the latter, the limitation of the employees’ rights will most likely be reasonable and justifiable.

It is advisable that employers attempt to obtain employees’ consent to be vaccinated before implementing a mandatory vaccination policy as there is no certainty as to the legality of implementing such a policy. We are hopeful that the legislature will intervene and provide clarity on the matter before the vaccinations become freely available.

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