1. The issue surrounding mandatory COVID-19 vaccinations in the workplace has remained shrouded in uncertainty ever since the introduction of the vaccine into the country. On the 11th of June 2021 the Department of Employment and Labour clarified the issue. The department issued a directive entitled ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’. It stipulates that every employer must undertake a risk assessment within 21 days of the amendment of the directives coming into effect. The assessment requires employers to state whether they intend on making COVID-19 vaccinations mandatory in the workplace. Furthermore, if the employer does intend on making vaccinations mandatory, they will need to identify the employees that must be vaccinated based on their relative risk of transmission or their risk for contracting severe COVID-19 based on their age or comorbidities. The guidelines provided are intended as guidance in determining the fairness of a mandatory vaccination policy and the implementation thereof.
  2. In order to formulate the basis of the assessment, the employer is required to consult with the employees’ representative trade union and any health and safety committee established in terms of Section 19 of the Occupational Health and Safety Act if applicable. In the absence of such a safety committee, a health and safety representative designated in terms of Section 17(1) of the Occupational Health and Safety Act can be consulted. As a final alternative, an employee representative can be approached.
  3. The employer is further required, in terms of Directive 4(i)(ii), to provide employees with information surrounding the dangers of the virus, the manner of its transmission, measures to prevent transmission and where to go for screening or testing if one has COVID-19 related symptoms. The employee will also need to be provided with information relating to the nature of the vaccines used in this country, the benefits associated with the vaccine, the contra-indications for vaccination and the nature and risk of any serious side effects.
  4. In the event that an employer, after conducting the abovementioned assessment, elects to make COVID-19 vaccinations mandatory, the following guidelines must be complied with:
  • Every employee, as identified in the employer’s risk assessment plan, should be notified of the obligation to be vaccinated as well as when the vaccine becomes available to them. The employee should further be informed of his/her constitutional right to refuse the vaccine or to refuse on possible medical grounds, as well as his/her right to consult with a health and safety representative, employee representative, or trade union official.

Grounds for refusal to be vaccinated include: Section 12(2) and Section 13 of the Constitution, which encompass the right to bodily integrity and the right to freedom of religion. Medical grounds refer to issues surrounding possible allergic reaction of any severity to a previous dose of the vaccine or a known allergy to a component of COVID-19 vaccine.

  • If reasonable and practical, the employer is to provide the employee with transport to and from the vaccination site.
  • In the event that an employee suffers side effects from the vaccine, the employer must give the employee paid sick leave to recover. If the employee is no longer entitled to paid sick leave, the employer may elect to lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Deceases Act on the employee’s behalf.
  • If an employee refuses to be vaccinated on any constitutional ground, the employer should counsel the employee and allow the employee to seek guidance from a health and safety representative, employee representative, or trade union official. If an employee refuses on any medical ground, the employer should refer the employee for further medical evaluation. If necessary, the employer should take steps to reasonably accommodate an employee who has refused to be vaccinated on these grounds and establish a position that does not require such employee to be vaccinated. Such reasonable accommodation could include allowing an employee to work off-site, to be isolated within the workplace, or even to work outside of ordinary working hours. Therefore, the employer cannot simply terminate employment on the basis of contravention of the policy and refusal to vaccinate. For example, businesses operating on skilled labour in the field of finance could reasonably allow many of their employees to work off-site in order to accommodate their decision to not take the vaccine. It is only if there is no reasonable alternative that termination can occur and, even then, a fair process needs to be followed.
  1. In conclusion, Directive 3(1) of the regulations does permit an employer to make COVID-19 vaccinations mandatory for its employees if necessary. However, an employee may refuse to be vaccinated on any constitutional or medical ground. If an employee has refused to be vaccinated, based on one of the abovementioned grounds, he or she may not be dismissed for such refusal. Rather, the employer and employee should try to reach an acceptable alternative arrangement.

Should you require assistance with your Vaccine Policy Risk Assessment, please contact our offices and one of our attorneys/consultants will gladly assist you therewith. 

 

Ashmini Singh                                                             Dylan Roothman

BSoc Science, LLB, Adv Dip in Labour Law                 LLB

Director                                                                        Candidate Attorney

Labour Law Department                                        E-mail: ca8@sstlaw.co.za 

E-mail: ashmini@sstlaw.co.za                              Phone: 012 361 9823

Phone: 012 361 9823