The Occupational Safety and Health Act imposes an obligation on employers to maintain the workplace in a condition that is safe and without risks to the health of employees. The Directorate of Occupational Safety and Health Services also provides a non-binding recommendation that all workplaces should develop infection control plans and policies aimed at minimising the spread of COVID-19 in workplaces. For example, promotion of hygiene, observing social distance techniques, and promotion of remote working amongst others. While there is nothing preventing an employer from encouraging its employees to be vaccinated, employers should, however, be careful when issuing blanket vaccination policies or incentives to employees since such policies and incentives may easily be considered discriminatory.

The Constitution and the Employment Act protects employees from both direct and indirect discrimination on the basis of their health status, religion, conscience, belief or culture. Vaccination incentives may be considered discriminatory for the following reasons:

1. Vaccination is not suitable for everyone. Some of the vaccines are not suitable for certain individuals with suppressed immune systems. An employee with certain allergies may also be advised against vaccination. Other employees may refuse the vaccine for mental health reasons. These employees would be disqualified from enjoying the incentive available whether monetary or non-monetary.
2. Certain religions or beliefs held by employees may result in apprehension in receiving the vaccine. Such employees would also be disqualified from enjoying the incentives that are available to others.

In the cases of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR and PAO & 2 others v Attorney General, Aids Law Project (Interested Party) [2012] eKLR, the courts held that the right to health contains both freedoms and entitlements and that the freedoms include the right to control one’s health and body and the right to be free from interference. An employer should therefore be careful to balance its obligation to provide a safe workplace with the employee’s freedom and right to control one’s health and the right to be free from interference.

The above cases may however be distinguished because they did not deal with a pandemic. It remains to be seen whether a COVID-19 court case that addresses the question of vaccination especially for industries such as health care which may have a strong case for their employees to be vaccinated for their own protection.

In the meantime, employers may consider collective consultation with employees or their trade union representatives to develop internal sensitisation plans which may contribute towards voluntary take-up of the vaccine without having to give incentives.