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Why employers want mandatory COVID-19 jab

By William Maema and Victoria Njoroge

The second phase of the COVID-19 vaccination in Kenya is underway and available statistics show that approximately 3.34 Million doses of the vaccine have been administered so far.   

Unfortunately, however, despite the proven benefits of the vaccine and the widely quoted aphorism that 99.9% of all hospitalised COVID -19 patients are unvaccinated, myths, ignorance and apathy have contributed significantly to the slow uptake of the vaccine in Kenya. This explains why despite the generous donation of the vaccine by other countries to Kenya, to date only 857,000 Kenyans (2% of the population) have received the full dose.

In contrast, some countries have vaccinated almost their entire adult populations. Portugal leads the pack with 84%, UAE follows at 80.8%, Singapore and Spain tie at 77% while China, the most populous nation on earth, stands at an impressive 70% on the map of the vaccinated world.

In most of these countries, life has almost gone back to normal, businesses resumed full operation and the obligation of wearing masks downgraded from “mandatory” to “recommended”.  

The world seems to have come to terms with the fact that COVID-19 is probably here to stay or, at any rate, not going to leave us alone any time soon. Accordingly, life will have to go back to normal somehow, with or without the pandemic.

Currently, vaccination remains the only silver bullet in the hands of mankind in the fight against this invisible but ubiquitous enemy. It is, therefore, imperative for every country intending to resume normalcy and re-ignite its economy to take bold measures to ensure that its workforce is vaccinated. A sickly army has never won any war.   

Based on the recent quarterly labour report issued by the Kenya National Bureau of Statistics, it is estimated that Kenya has 16 Million employees. By extrapolation, therefore, it is safe to conclude that only a paltry 320,000 employees have been vaccinated.

The low uptake of the COVID-19 vaccine presents a major dilemma for employers who are eager to resume normal operations and recover the losses suffered in the last 18 months.  The work from home (WFH) model has proved its worth and undisputable benefits and will probably continue to some extent after the end of the pandemic. However, as we painfully learnt from the challenges posed by virtual learning resulting in the Government’s resolute directive to re-open schools despite the pandemic, employers too have learnt the hard way that there is a good reason why work was designed to be performed at the normal workplace and at regular hours rather than in the comfort of one’s home and at self-determined hours.

The WFH model has posed various challenges to  employers ranging from distraction of employees by personal chores and parental responsibilities to lack of a conducive and safe working environment at home, absence of human contact and the social life which the work-place provides, risk of data breach, inability to protect the confidentiality of official communications and information, impracticality of conducting meaningful on-the-job training and the cost of maintaining a fully equipped home office while still incurring the cost of the normal workplace.

Cases of indiscipline and truancy have also been reported among employees who are supposedly working from home but are in fact engaged in parallel full-time private businesses and are often unavailable even on phone when required. It is even suspected that some employees have deliberately refused to take the vaccine in order to continue working from home.

As  Kenyan law currently stands, no employee can be forced to take the vaccine or sanctioned on that account. The Constitution declares that all persons are equal before the law and everyone is protected against any form of direct or indirect discrimination based on health status, religion, conscience, belief, etc. The corollary of this constitutional principle is that an employee who is denied access to the workplace or subjected to any sanction by the employer for failing to take the vaccine can sustain a valid claim against the employer on grounds of discrimination.

On the other hand, the Constitution guarantees every person the right to reasonable working conditions which, by extension, include a safe and healthy workplace.   

Similarly, the Occupational Safety and Health Act imposes a duty upon every employer to ensure the safety, health and welfare of its employees and all persons at the workplace.

The Work Injury Benefits Act also promotes workplace safety and health by providing compensation to employees who suffer work-related injuries and diseases contracted in the course of employment. Since an unvaccinated employee has a higher risk of developing severe disease or dying from COVID-19, it follows that by allowing such an employee access to the workplace the employer could be held liable in the event the employee contracts the disease at the workplace or dies from it.

The current legal framework places employers in a quandary. On one hand, it requires employers to maintain a safe workplace and protect their employees against the risk of contracting COVID-19. On the other hand, they run the risk of being sued by employees for discrimination and breach of constitutional rights should they deny unvaccinated employees access to the workplace or impose disciplinary sanctions on account of the employees’ refusal to be vaccinated.

Unlike some countries which have made the COVID-19 vaccination a non-negotiable subject at the workplace, Kenya is yet to pass any law or regulations to that effect.

The Public Health Act empowers the Cabinet Secretary for Health to make rules requiring, among other things, the vaccination or re-vaccination of persons whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease.

The Government can utilise this window to come up with appropriate regulations to enhance the safety of the workplace by requiring employees to be vaccinated as a condition of being granted access to the workplace and empowering employers to impose such sanctions as may be appropriate (including suspension without pay or termination of employment) upon employees who are unable to provide proof of vaccination without a valid reason.

In a country with a robust constitutional heritage like ours, such regulations may sound draconian but a pandemic season is no different from war time or state of emergency when certain constitutional niceties get suspended for the greater good of society. Constitutional freedoms are not absolute. Although the Constitution guarantees the freedom of movement, we have been on a night to dawn curfew since the onset of the pandemic.

By introducing such measures, Kenya would not be treading into virgin territory. It would simply be following in the footsteps of other countries which have taken bold steps in this direction at varying degrees of severity.  On the extreme end of the spectrum is Fiji which has adopted a policy of “No Jab, No Job” and enacted legislation to make vaccination compulsory for all employees.

Greece has introduced mandatory weekly testing for public and private sector employees at the employees’ own cost for employees who fail to produce a vaccination certificate in order to access the workplace.

Italy has decreed that health workers who are not vaccinated could face suspension without pay for the rest of the year.

In the very bastion of democracy and civil liberties, the US President recently issued an executive order directing the mandatory vaccination of all Federal Government employees. Legislation to that effect is in the offing.

In the UK where the administration of the vaccine is still voluntary, the Department of Health and Social Care recently enacted legislation which is due to come into force in November 2021 making it compulsory for home-care health workers to be vaccinated.

In South Africa, the employer is required to identify employees who are at a high risk of contracting COVID-19 due to age, pre-existing medical conditions or customer-facing employees and require them to mandatorily take the vaccine.

If all the 16 million employees in Kenya were to be  vaccinated, the country would be well on its way to achieving its declared target of vaccinating  26 million people by the end of 2022.

Massive vaccination is the most effective economic stimulus the country needs to get out of the doldrums of the pandemic.

The article was also featured in the Business Daily and can be accessed here

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