eBusiness Weekly
Business Weekly
Last Word
The costs, direct and indirect, of doing business in a Covid-19 environment are mounting for most companies and around the world business owners and managers are facing a number of questions, legal and moral, over how they can cope and how they can minimise the costs and ensure their survival and growth.
For example, a major question now facing many businesses in countries where vaccination rates are high is whether they have the right, legal and moral again, to demand all staff are vaccinated and if staff refuse to be vaccinated what action can be taken.
It would perhaps be helpful to look at the multiple issues that face a business.
First every businesses needs to function, and that means it needs its staff to be productive. Staff costs are one of the largest items on any business’s income and expenditure account and paying people to do nothing is not a long term policy, and even paying them to be less productive just puts off the evil day.
A fair amount has been done in some businesses åçto have more staff working from home. This is not always ideal, since a surprising amount of work gets done when people can interact and when a quick question can be answered by just looking up from a desk. In some cases, perhaps many cases, it is impossible. Factory and mine workers, for example, cannot work from home, and the retail sector has the same problem, needing staff to physically attend to customers.
Secondly the cost of sick leave is a major indirect cost. When someone falls ill with Covid-19 they are very likely to survive, although one to two percent may die. But generally they will be off for around a month, some longer but very few much less. And in that time they are not doing what they were hired to do. Which means it does not get done, or someone else has to do it and that can lead to direct costs, overtime, which at the moment possibly means a six-day week for the fill-in staff, or the hiring of a temporary replacement.
Thirdly we have legal and moral obligations in business to ensure that staff have a safe working environment. This covers all sorts of responsibilities such as decent and clean bathrooms, clean canteens, adequate ventilation, adequate lighting, freedom from a toxic environment, which is why smoking is now banned in all businesses, and, critically in the present environment, freedom from the risk of infection by a contagious disease.
Fourthly under most laws we have to recognise that staff have a private right of confidentiality over their medical conditions and medical treatment they are receiving. This is not totally absolute. For example most employers would like to know if an employee is epileptic, so they are not assigned to duties where sudden disorientation or collapse could endanger their lives or the lives of others. But in other cases medical conditions are not the business of employers; this was most noticeable in recent decades over HIV status. Since someone living with HIV is not a danger to others, in a business environment at least, and if that infection is controlled, as these days it can be, there is no need for an employer to investigate let alone find out.
Putting the first three points together we get an ideal situation for most employers. This is having all staff vaccinated, wearing masks, being temperature checked on arrival, social distancing where possible, but especially in situations where they cannot wear masks such as when they are eating or drinking, and maintaining exceptional levels of personal hygiene.
Many employers would like to go further, having staff spending off duty hours, especially at home, in a similar safe environment and travelling to and from work in a safe environment.
Besides staff there is the question of customers, a special problem in the retail sector, where obviously they must be allowed to come into the shop. Here masking, sanitising, temperature checks and social distancing are required to minimise the risk, but most shopkeepers would like to work in an environment where all customers were vaccinated as well.
As countries build up their pool of vaccinated people web-sites are crowded with queries and governments are making ad hoc decisions. Many employers want the right to bar unvaccinated staff from the premises. In many countries, and Zimbabwe appears to be one of them, this appears t infringe some individual rights over personal medical decisions.
But in most countries, and again Zimbabwe is on this list, it appears legal to insist on either a vaccination certificate or a negative recent test. Zimbabwe’s Public Health Act does allow compulsory testing, although not compulsory vaccination, for example, which is why the Government at times has insisted employers do test staff.
However in that litigatious society of the United States, courts have been exploring the law further. In one of the most recent set of cases a college insisted that all students who wished to attend classes on the campus had to be vaccinated. A small group objected and went to court. The first court turned them down; the appeals court agreed that this was lawful. They then tried to appeal to the Supreme Court. The judge who acted as the gatekeeper to keep totally hopeless cases of that roll rejected the appeal outright, quoting the old smallpox regulations from early last century that allowed colleges to bar the unvaccinated.
Other countries are now allowing restaurants to re-open, for the vaccinated only, or for vaccinated spectators at football matches. These deal with people doing something in their spare time, and so do not involve labour laws. Zimbabwe is now trying that out with church attendance and the results of that experiment will obviously drive future decisions.
It appears that in Zimbabwe an employer can legally demand either a vaccination certificate or a recent negative test, and probably can insist that the test is paid for by the unvaccinated employee. But this has not been stated in the regulations and there are trade unions who have threatened legal action, basically over the provision that the test has to be paid for by employees since the right to test is in the law already, along with an interesting provision that the cost a lot of quaranteening and other measures can be recovered from the individual concerned, or “from their estate” in the case of a serious contagious disease.
But business organisations now probably need to start lobbying the Government for an appropriate regulation, which would lay down the conditions and the duties of both employers and employees. The Government might well be sympathetic, since it is edging this way with its own civil servants.
It is fairly obvious what some of the conditions would be. For a start the employer would have to either arrange vaccination or give every employee adequate time and the necessary time off to get vaccinated. With under a quarter of the initial target of 10 million now having had at least one injection, and little over 1,3 million having had both, this would be vital.
But with that condition met the second question would be who pays for the test for the unvaccinated. It appears the Government has the right to allow employers to make the employee pay. There might be a single court case to set the precedent, and no one can say how a judge, or a bench of appeal judges, will rule, but since it is not “unreasonable in a democratic society” it will probably be acceptable.
At the same time, with the examples of churches and Victoria Falls in place already, some business sectors could perhaps start linking vaccination and lockdown relaxation. The obvious example is the restaurant business, very badly damaged, where it should be possible to work something out. But again this would need detailed negotiations.
There is a tendency for businesses to speak out publically on what they think should be done, and that input into public debate is useful, but when it comes to detailed rules and regulations these need to be worked out with the responsible Government departments. And business organisations would have to come up with practical solutions to the problems of cheating and monitoring. Having a cop come into every restaurant every half hour to check is not the most useful option.
Here the church experiment is already providing some useful input. The Catholics, for example, want to see both the vaccination certificate and the national ID to ensure the certificate belongs to the parishioner and has not just been borrowed for an hour. They are not just embracing the rules, but want a safe environment for other worshipers.
And in the end this attitude has to prevail across all sectors. The careful and the vaccinated have rights as well as the careless and the unvaccinated, and one job of Government is to referee those rights, hence the need for business to work within the system.
