The Head of Public Service Joseph Kinyua has warned that action will be taken against civil servants who are not vaccinated by August 23rd, 2021. He said in a memo that it had been discovered that there was low uptake of the vaccines among public servants especially in the security sector, teachers and the core civil service against a background of access to vaccines having greatly improved among the groups. The Public Service head added that some public servants have deliberately avoided getting vaccinated so that they can stay away from work under the guise of working from home, hence affecting service delivery to the public.

A similar instruction has been issued by private sector entities requiring their employees to get vaccinated within given timelines. As such companies have been organising vaccination drives for their employees as part of back to work efforts.

This is not just happening in Kenya. Private sector players locally and internationally on the other hand have embraced the idea of having their entire staff vaccinated wholehearted. Australian airline Qantas has said all of its employees must be vaccinated against Covid-19, making it the latest global airline to mandate jabs for staff.

However, there has been some skepticism among some Kenyans about the coronavirus vaccines. Some base it on their religious beliefs while for others, it is based on misinformation on the side effects of the vaccines.

As individuals, companies and Governments grapple with finding ways of returning to normalcy, which in part has informed the drive to get vaccinated, the emergent concern that arises is whether it is legal to enforce mandatory vaccination.

The law

The Occupational Safety and Health Act (OSHA) requires employers in Kenya to ensure the safety, health and welfare of its workers. An employer has the obligation of providing information and other relevant information as it is necessary to ensure the safety and health at work of every person employed, including ensuring that each employee participates in the prevention and reduction of the risk of exposure in the workplace. It is therefore expected that in high-risk working environments, that employers will highly encourage employees to be vaccinated.

The general duty of an  as governed under  The employer cannot provide a financial incentive to employees. However, an employer under OSHA is duty-bound not to charge employees for vaccinations particularly if they are employer-mandated.

In Kenya, employers who are obliged to offer vaccines to employees are those whose employment duties place them at a high-risk of exposure to COVID-19. Health workers fall squarely under this category and their employers, both in the private and public sector, have been mandated to offer vaccinations to them on a priority basis. In other non-high-risk industries, the employer is not mandated to offer its employees vaccinations.

The Data Protection Act is clear that personal data relating to health can only be processed by or under the responsibility of a healthcare provider or by a person subject to the obligation of professional secrecy under any law. This means that an employer cannot legally make a record of vaccinated or unvaccinated employees. 

While employees do not have a duty to inform employers whether or not they have been vaccinated, nothing stops them from willfully informing the employer that they have or have not been vaccinated. This act should not lead discrimination on the grounds of health.

Compulsory vaccinations

The Government of Kenya has appreciated the impact of its infant immunization programme launched in 1980 that brought about the elimination of diphtheria, the near elimination of pertussis, and marked control of measles. The Ministry of Health established The Kenya Expanded Programme on Immunization (KEPI) in 1980 with the main aim of providing immunization against six killer diseases of childhood, namely tuberculosis, polio, diphtheria, whooping cough, tetanus and measles to all children in the country before their first birthday, and tetanus toxoid vaccination to all pregnant Women. From the early 1970s, international travel regulations mandated that travelers moving across countries must be appropriately vaccinated

Compulsory vaccinations internationally

At the moment, several countries have requirements for vaccination or a negative test, for outdoor activities. These countries are:

AUSTRALIA- In June, Australia decided to make vaccinations mandatory for high-risk aged-care workers and employees in quarantine hotels.

BRITAIN- From October, vaccination will be mandatory for care home workers in England. Patrons visiting nightclubs and other venues with large crowds will be required to present proof of full vaccination from the end of September.

FRANCE- On August 2, the French parliament approved a bill which will make vaccinations mandatory for health workers as well as require a bolstered health pass in many social venues. On July 19, the government said that the fine for businesses that do not check that clients have a health pass will be starting from 1,500 euros and increasing progressively for repeat offenders. 

Key things to note include:

• Industry risks and OSHA – Front line workers in sectors such as healthcare may be compulsorily vaccinated in a bid to lessen the risk they face on their line of work. 
• Data Protection – Data protection issues will definitely arise since health data is considered sensitive personal information according to the Act. The standards for processing health data are really high and many entities may fail on the necessity test while trying to show why they require their employees’ health data.

• Personal autonomy – The Constitution provides for the right to belief and this is the genesis of autonomy arguments. Many people have different views and beliefs on the vaccine, therefore mandating vaccination risks going against their Constitutional rights,

What should be done

Businesses should communicate with their staff on the importance of vaccinations to their health. This communication should encourage staff to get vaccinated while sharing the advantages of the vaccine.