New Rules - Vaccines can be made mandatory at the Workplace

In my article ‘Vaccinations and their Impact on the Workplace’ published on the 29 April 2021, I drew the analogy of Hamlet’s ‘To be or not to be’ and raised the vexed question of whether employers would have the right to enforce the ‘rule’ that only vaccinated employees would be allowed to be employed in the workplace, and whether employees would be able to invoke their right not to be vaccinated.

I mentioned in my article that a legal debate was raging as to whether employers could indeed make the administering of the coronavirus vaccine compulsory for employees. I envisioned that the disaster management regulations would be amended in such a manner as to underscore a worker’s right to a safe and healthy workplace, thus advancing the argument of making vaccinations mandatory in the workplace.

I stressed that it was important for employers to have a coherent vaccination policy and plan in place and that both were to be transparently communicated to all employees. The plan would, I suggested, go a long way to mitigate against any potential litigation arising from the issue of vaccinations becoming mandatory at the workplace.

Against this backdrop, the Department of Employment and Labour on Tuesday issued an updated occupational health and safety directive which, among other things, expressly permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines.

“While this latest directive clarifies the matter, it cautions employers that when implementing a mandatory workplace vaccination policy, the rights of employees to bodily integrity and religious freedoms and beliefs must be taken into account”, said law firm Cliffe Dekker Hofmeyr.

The firm’s employment practice has developed detailed guidelines for employers and employees regarding the new directive and the provision of a vaccination policy:

Time frame

An employer has a period of 21 days from when the Directive comes into effect to amend/update their workplace plan which must include the following:

• Whether the employer intends making vaccinations mandatory at the workplace

• The category, or categories of employees that must be vaccinated

• The manner in which the employer will adhere to the Directive

• The measures the employer will take to implement the vaccinations of employees as and when vaccines become available

Duty to Consult

An employer must consult with the relevant trade union/worker representatives on the mandatory vaccination policy together with any health and safety committee established in terms of the Occupational Health and Safety Act.

The policy must also be made available for inspection by trade unions, the health and safety committee, as well as an inspector.

Factors to consider when determining mandatory vaccinations include:

• The age of the employee

• Comorbidities

• Risk of transmission due to the role of the job

• Any collective agreement in place dealing with the subject

Awareness Creation and Education

An employer must raise awareness among employees with regards to, amongst others, the nature, benefits, and risks associated with vaccines.

The objectives of the guidelines should be:

• That the guidelines do not supersede or undermine any collective agreement on the subject

• That the guidelines are general and broad in nature and that deviations may be required based on specific workplaces

• That the guidelines are based on mutual respect, striking a balance between public health imperatives, the constitutional rights of employees, and the efficient operation of the employer’s business

Essentials

A mandatory vaccination policy must include the following:

• A notice to employees that they must be vaccinated as and when vaccines become available

• Provide employees with paid time off to be vaccinated, provided an employee shows proof of vaccination

• A right to refuse vaccinations on constitutional or medical grounds

• The opportunity for an employee to consult with a trade union representative, a worker representative or a representative of the health and safety committee

• Where reasonably and practically possible, provide transport for employees to vaccination sites

• Allow an employee sick leave or paid time off in the event that they suffer any side effects after receiving the vaccination, alternatively initiate a claim on behalf of the employee in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA)

What if an employee refuses to be vaccinated?

Where an employee refuses to be vaccinated on medical or constitutional grounds, an employer should:

• Counsel the employee and allow him/her to confer with his/her trade union representative, a worker representative or a member of the health and safety committee

• Refer the employee for further medical examination in instances where the objection is based on medical grounds. This will, of course, require the consent of the employee

If necessary, take steps to reasonably accommodate the employee by making amendments to their job role or work environment in one or more of the following ways:

• Allow the employee to work from home where this is possible

• Require the employee to self-isolate at the workplace

• Require the employee to wear an N95 face mask at all times whilst at the workplace

For more information regarding the latest lockdown rules for workers in South Africa, click here.

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