Legal Clinic: Can my employer force me to get a Covid-19 jab?

I recently read in the news that government staff are being forced to take the Covid-19 vaccine, and I fear the rule might start applying to us in the private sector. Does the employer have a right to do that?

Dear Reader,

While you may be one of the many Kenyans worried about mandatory vaccinations, Covid-19 experiences are scary if we listen to those who have survived the illness. The concerns you raise are as valid as the lives many of us wish to protect, even at the family level. With or without known law, we wake up each day to modify conditions and attend to situations that improve life.

We fight poverty, diseases, illiteracy, terrorism, corruption, and crime to make life meaningful and safe. In so doing, we support and protest, almost in equal effort, programs, businesses, ties, policies, laws and jobs. Specifically, we create environments that make our relationships amenable.

In context, we interrogate and reimage our attitudes to accommodate what could be referred to as the common good. Therefore, our conversation cannot be singularly a subject of law since the issue at hand has verifiable scientific merits.

The Constitution of Kenya at Chapter Four provides for the Bill of Rights as an integral part of the democratic fabric of the country. The purpose being the recognition and protection of human rights and fundamental freedoms. This is where your concerns and those who hold contrary opinions derive their philosophical and legal foundations.

 Despite the government's push to ensure everyone has been vaccinated as a mechanism to slow down the spread and negative impact of Covid-19, you have a right to accept or refuse the vaccine. Article 32 of this Constitution gives you a right to freedom of conscience, religion, thought, belief and opinion. The only question left for you to ponder whether this right is absolute?

Law mechanics

 It is common knowledge that no man is an island, and we either belong to a group by default or choice. This is the spanner into law mechanics, not likely envisaged or mostly ignored, by those who wage campaigns against and resist vaccination.

Article 26 of the Constitution provides each person, even a foetus, and the right to life. In context, this right is given life by the many other provisions, including the right to enjoy freedoms and rights to the greatest extent consistent with the nature of such rights and fundamental freedoms as indicated in Article 20 (2).

At this point, the Constitution invites legal liberty or looseness in interpreting absoluteness in its provisions. There is a recognition that the right to life only stands supreme if all attendant processes or rights are not left to thrive or function in isolation.

Placing Article 32 and 26 of the Constitution in the basket of relationships, human to human and public to state, it is important to review the following rights: the right to privacy as given at Article 31, in particular the aspect of information being required unnecessarily: and the right to the highest attainable standard of health, including the right to health care services as espoused at Article 43 (1-a). The analogical deduction centres that the public as owners of these rights similarly brings on board the state duty-bound to create an amiable environment for their realisation.

Consequently, Article 21 (1-2) should interest both groups that either oppose or support vaccination. It is given that the state should take appropriate steps, as provided for at Article 21 (2) that are legislative, policy or otherwise, including setting standards to achieve the progressive realisation of rights under Article 43.

Further, Article 24 offers insights on how the fundamental composition of the Bill of Rights can be limited, though not at the behest of the state, but by the direction of the High Court, whose jurisdiction is stamped by Article 23 (1).

Notwithstanding, every employer has a general duty to ensure their workers’ safety, health, and welfare, as the spirit found in the Occupational Safety and Health Act. Fundamentally, the employer is obligated to create space within which all employees prevent and reduce risk exposure in workstations.

The common good picture that has been painted in this text points to three scientific scenarios possibly explaining mass infections across and between people. Anecdotal evidence from hospitals indicates adverse Covid-19 effects, including higher mortality on those without vaccination. Infections originating from the contagious Delta variant are vicious and unprecedented among the unvaccinated.

Many of those admitted and occupying Intensive Care Unit (ICU) beds are unvaccinated. These are scientific facts that law, however, right-oriented cannot wish away or ignore. From the foregoing, there is every possibility that you will find yourself torn between your opinion that detests vaccination and the force of government, likely your employer too.

There is no guarantee that Article 32 of the Constitution will reduce the chances of mandatory vaccinations if you choose to go to court. It is, however, an opportunity for the legislature to develop an enabling law for the section of Article 24 (1), which cautions one’ s enjoyment of rights not to prejudice that of others. In the confines of this Constitution, the court cannot allow your comfort to predispose many others, including friends, children, colleagues, spouses and siblings, to the dangers of Covid-19.

Remember, your right is not an end in itself.

Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director of the Legal Resources Foundation. Legal query? E-mail [email protected]