Two decisions made on Tuesday this week, one by Cabinet and one by the High Court, provide a great deal of guidance to Zimbabwean businesses over how they manage Covid-19 and how they balance the rights of all employees to a safe working environment with the individual rights of employees to manage their health care.
The Cabinet agreed that civil servants unvaccinated against Covid-19 should not report for work. This is an administrative decision, the full details of which still have to be fleshed out by the commissions that manage all State employees.
But it possibly could be modified by the commissions with the clause in the latest lockdown regulations that allows a very recent negative Covid-19 test as an alternative where full vaccination is required. This will probably be up to the commissions when they implement the instructions from the Cabinet.
The other decision, the one by the High Court, dismissed as urgent an application by the Zimbabwe Congress of Trade Unions seeking an interdict against six companies and other entities from demanding a vaccination certificate from employees or, in some cases at least, a weekly negative PCR test taken at the expense of the employee.
The judge rejected the urgency of the application on the ground that the ZCTU had waited almost two months before lodging the application, showing the ZCTU did not see the matter as urgent. But she also referred to two other factors: that the growing number of vaccinations, especially in the six, had largely made the objection a dead letter and that there was no evidence presented in the application of any particular person who had suffered any irreparable harm.
The ZCTU application is still live, but it goes to the foot of the continuous opposed-motion roll, without any interim interdict, so there is a long delay. The net result of the two decisions at national and court levels is that employers now have a great deal of leeway to decide how they want to manage the risk of Covid-19 infection and how far they want to go beyond the legal obligations laid out in the often-amended lockdown regulations. For some businesses the regulations do not give options. Staff, as well as customers, in restaurants, cinemas, gyms, sports clubs and the like have to be fully vaccinated or, because of the saving clause, present the very recent negative test result. But most businesses are just governed by the masking, sanitising, temperature checking and social distancing rules, although if they are not essential they have to keep half their staff away from the premises at any particular time.
The premise behind the Cabinet decision and the decisions by the six entities sued by the ZCTU and by now more businesses, is not to punish the unvaccinated or even, in strict legal terms, to press them to get vaccinated although that might be a beneficial side-effect. The reason is built around the responsibility of all employers to create a safe and tolerable working environment. Employees have that right. Employees also have the right to manage their own health care. But the rights of one person are not permitted to infringe the rights of others. No one argues that a person who has tested positive to Covid-19, or any other contagious disease that is easy to transmit in a normal working environment, is permitted to come to work until they are clear, regardless of how well they appear to be. This is a practical decision. Someone fighting cancer, or even infected with an infection such as HIV that cannot be transmitted in a working environment, can continue working if they are able and otherwise well. But if you have cholera stay away.
The rules extend down the line. No one is killed or injured by sexual harassment, for example, but it creates an intolerable working environment so is banned in all forms, although is not criminal if not a nuisance in other circumstances and flirting might even be encouraged at a private party.
There are other safety precautions at work. Smokers can kill themselves on the other side of the door, but not produce substances harmful to others in the work environment. Drinkers can lie comatose at home, but cannot endanger others by being under the influence at work. Examples proliferate, but the guiding rule is protecting other people’s rights.
Coming to Covid-19, an infected person with no symptoms or very minimal symptoms can easily work. But they are infectious. Vaccines are efficient, but not foolproof. So demanding that someone is vaccinated or at least can prove they are negative before they come to work reduces infection risks dramatically.
In many countries there is growing pressure and rules for vaccination as a condition for coming to work. In America, where individual rights are given a high priority over community rights, the government has given deadlines for all businesses with over 100 staff, to demand a vaccination certificate or a recent negative test. The reasoning is the same as the Zimbabwean Government and businesses, that the rights of the vaccinated need to be protected. They are entitled to a safe working environment.
There are, of course, practical considerations to be taken into account, the primary one being that employees are given adequate opportunity to get their free vaccinations. The Government gave its frontline staff priority from the beginning of the national vaccination drive in February. Within a month most others were given priority and shortly after that everyone. Since then it has been calling on State workers to get their jabs and has ensured that vaccine supplies and vaccine administration is equal to or greater than the demand. If you want to be vaccinated today you might be in a queue but you will be jabbed.
The businesses that have introduced tighter vaccination requirements followed the same course, with some even bringing in vaccination teams and others making arrangements, including laying on transport, or at least giving time off. The Confederation of Zimbabwe Industries now reckons more than 80 percent of factory workers are protected and the Judicial Service Commission hit 96 percent of its staff by early this month.
With the programme the Government has in place and is funding fully, and the openings given by the Cabinet and court decisions on Tuesday, it seems that many businesses can move forward confidently to upgrade significantly the safety and health of their work environments.
More importantly we are now moving towards the point where declining to upgrade the environment will be seen as the wrong decision, rather than any insistence on vaccination.
The next lawsuit could well be an application for a mandamus order from vaccinated staff demanding that their employer insists on vaccination or a recent negative test. And that has more chance of success than an application for an interdict banning compulsory vaccination or testing since, as President Mnangagwa has repeatedly said, none of us are safe until we are all safe.