Whilst Government had initially taken the view that vaccinations against COVID-19 would not be made mandatory, the revised Consolidated Directions on Occupational Health and Safety Measures in certain workplaces (the Directions), promulgated by the Minister of Employment and Labour, on 11 June 2021, reflect a significant change of approach.
In particular the Directions now implicitly permit, subject to a number of safeguards, employers to differentiate between, those employees who become vaccinated and those who refuse.
Regulation 3 of the Directions requires employers to undertake a risk assessment and implement preventative measures in the workplace within 21 days of the Directions coming into effect. Notably, Regulation 3 (1) (a) (ii) of the Directions, provides employers with the discretion to determine whether they intend making vaccination mandatory in the workplace. Employers are however required to have regard to the operational requirements of its business, the employees’ Constitutional rights (notably those to bodily integrity, freedom of religion and freedom of belief and opinion) and any collective agreement which provides otherwise.
In complying with its obligation to conduct a risk assessment and implement preventative measures set out in Regulation 3, an employer will be required to adhere to the following process in implementing a mandatory vaccination policy:
Identify those employees within its workplace who are at high risk for the transmission of COVID-19 either by reason of; their type of work, age or comorbidities, and determine whether it intends making vaccination for these employees mandatory.
Prepare or amend existing plans, to address amongst other aspects:
- The employer’s decisions as to whether it intends to make vaccination of its employees mandatory, as and when COVID-19 vaccines become available;
- Those employees who have been identified as being at high risk for the transmission of COVID-19; and
- The intended measures and/or procedures dealing with the vaccination of its employees in compliance with the Directions.
Consult any representative trade unions and/or health and safety committees established in terms of the Occupational Health and Safety Act, 1993 (OHSA) on the intended mandatory vaccination;
In complying with its administrative obligations set out in Regulation 4, an employer will be required to adhere to the following process in implementing a mandatory vaccination policy:
Submit a record of its risk assessment plan together with any amendments and in this case, amendments dealing with mandatory vaccination to its health and safety committee;
Retain a written copy of the risk assessment plan and policy (incorporating all aspects of an intended mandatory vaccination policy) and make it available for inspection by appointed health and safety representatives and inspectors of the Department;
Notify all employees of this Direction and the plan and manner in which the employer intends implementing mandatory vaccination and other aspects of the Directions;
Provide employees with information and raise awareness around:
- The dangers of the COVID-19 virus, manners of transmission and preventative and other safety measures; and
- The nature of available COVID-19 vaccines, the associated benefits and the nature and risk of any side effects to the COVID-19 vaccines.
Assist all employees to register on the Electronic Vaccine Data System Registration Portal for COVID-19, and not just those employees to be bound by a mandatory vaccination policy;
Give all employees paid time off to be vaccinated during hours that the employee is ordinarily at work, provided the employee submits proof of the vaccination to the employer; and
Ensure compliance with the guidelines pertaining to mandatory vaccination as set out in Annexure C to the directions.
In complying with its preventative measures obligation set out in Regulation 6, an employer will be required to provide an employee with paid sick leave in the event that an employee suffers any side effects as a result of a COVID-19 vaccine.
The Directions provide further guidance to those employers who intend making vaccination mandatory in the workplace, in Annexure C to the Directions. These Guidelines are intended to assist both parties in ensuring that a premium is placed on public health initiatives, employees’ Constitutional rights and the efficient operations of an employer’s business.
Once employers have decided to implement a mandatory vaccination policy, they are required to:
Notify all affected employees of:
- Their obligation to get vaccinated as and when COVID-19 vaccines become available;
- Their right to refuse to be vaccinated on constitutional or medical grounds;
- The option of consulting with a health and safety representative, worker representative or trade union official should the employee elect to.
If reasonably practicable, provide affected employees with transport to and from the vaccination site;
In the event of an affected employee suffering side effects as a result of a COVID-19 vaccine, provide the employee with paid sick leave or if the employee is no longer entitled to paid sick leave, assist the employee to lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993; and
In the event of an employee refusing to be vaccinated on either constitutional or medical grounds:
- Provide the employee with counselling and if requested, allow the employee to consult with a health and safety representative, worker representative or trade union official;
- Refer the employee for medical evaluation in the event of medical contraindication for vaccination; and
- If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated. Other measures might involve allowing the employee to work remotely, requiring the employee to wear an N-95 protective mask or staggering working hours. In all respects, employers are required to comply with the Code of Good Practice; Disability when assessing reasonable accommodation.
The Directions appear to be a step in the direction to achieving the goal of herd immunity. However, the extent to which this is achieved, is going to be largely dependent on the manner in which employers go about introducing mandatory vaccination policies in the workplace. Employers are advised to seek legal assistance in undergoing a careful balance of competing rights and interests, and handling issues related to the enforcement of mandatory vaccination policies in a manner which is legally compliant not only with the Directions, but also other related legislative obligations in terms of OHSA, the Employment Equity Act, 1998 and the Protection of Personal Information Act, 2013.
The scope for the fair dismissal of employees who refuse to undergo vaccination is likely to remain extremely limited, and we recommend that employers exercise significant caution when contemplating such dismissals.