An updated consolidated directive on Occupational Health and Safety was issued on 11 June 2021 by the Department of Employment and Labour. This directive permits an employer to implement a mandatory workplace policy - subject to specific guidelines. Companies may consider mandatory vaccinations in order to provide a safe working environment and enhance the health and safety of employees.
If employees refuse to be vaccinated without reasonable justification, their employment may possibly be terminated on the basis of operational requirements, or even misconduct (failure to comply with the company’s policy). A dismissal for misconduct should however be the last resort. Legal battles are expected since objections to vaccinations are common (based on religious, cultural beliefs and health issues). Employers should also consider whether their worker’s health cannot be protected by imposing alternative measures.
The Department of Employment and Labour informed companies that they had to review their risk assessment plans before 2 July 2021 in order to determine whether they intend to implement a mandatory vaccination policy. In South Africa there is no legislation that prohibits mandatory vaccination policies in a workplace.
However, employees have to be consulted prior to implementation of a mandatory vaccination policy. Employers must further consult with representative trade unions in terms of Section 14 of the Labour Relations Act, as well as with the health and safety committee - according to the Occupational Health and Safety Act, 85 of 1993. The amended workplace plan must be made available for inspection by trade unions, the health and safety committee, as well as an inspector of the Department of Employment and Labour.
FACTORS TO CONSIDER WHETHER A MANDATORY VACCINATION POLICY IS REQUIRED:
· The number of vulnerable employees.
· Number of employees exposed to the public.
· Number of employees exposed to persons with COVID-19.
· Number of employees required to travel for work related purposes, especially if COVID-19 vaccination is mandatory for international travel.
· Number of employees with religious, cultural and/or medical objections.
· Option of remote work and effectiveness of physical distancing at the workplace.
· Effectiveness and applicability of personal protective equipment.
· Effectiveness of alternative measures to prevent the spread of COVID-19.
· Alternative placement for employees who are at greater risk.
· Infection-rate and deaths due to COVID-19 in the workplace.
· International vaccination reports and policies.
· Possibility of subsidisation of vaccinations.
· Employees in favour of mandatory vaccination.
IMPLEMENTATION OF A MANDATORY VACCINATION POLICY:
· Provide information about the COVID-19 vaccination risks and benefits.
· When side effects are being suffered after vaccination, sick leave or paid time off should be allowed, or make a claim on behalf of the employee in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993.
· State which employees must be vaccinated.
· Update policy to indicate whether vaccination will become compulsory.
· Detail the manner in which adherence to the directive will be implemented.
· Detail the manner in which vaccinations will be rolled out.
· Help people to register electronically to receive vaccinations.
· Allow people time off to get vaccinated. Proof of vaccination must be provided.
· Arrange transport to vaccination sites when possible.
· Allow employee to refuse vaccination on medical and constitutional grounds.
· Allow such an employee to consult with a trade union representative, a worker representative or a representative of the health and safety committee.
MANAGEMENT OF MEDICAL VACCINATION RECORDS:
The provisions of POPI will apply when requesting employees to make disclosures regarding their vaccination status (vaccination history of employees or potential employees is considered to be special personal information according to POPI - consent would therefore be mandatory). It is debatable if the employer may process the above mentioned special personal information.
A team, who would assure privacy and confidentiality regarding capturing vaccination information, should be selected. Measurements should be in place to safeguard against the risk of such medical information leaking. Discrimination against workers who refused to get vaccinated must not be allowed.
GROUNDS AGAINST VACCINATION:
1. Medical objections: Employees with allergic reactions to a dose of the vaccine, or those with a compromised immune system (as certified by a medical practitioner). Those who have recently contracted the virus, and therefore obtained natural immunity, should be considered.
2. Religious, superstitious, cultural and philosophical objections: Employees can decline to get vaccinated on grounds of bodily integrity in terms of Section 12(2) and the right to freedom of religion, belief and opinion cited in Section 13 of the Constitution. This will also include the manner in which the vaccines were tested.
All objections by employees must be considered and then balanced against the risk and impact of COVID-19 in the workplace and the right of all employees to a safe workplace.
The directive states that if employees refuse to be vaccinated, the employer must counsel the workers and allow them to confer with the union, a worker representative or a member of the health and safety committee.
The worker must be referred for further medical evaluation if the refusal is based on medical reasons. Steps to accommodate the employee who refuses vaccination should be considered.
CONSTRUCTIVE DISMISSAL:
A successful claim for constructive dismissal will be fact dependant and will be assessed on a case by case basis. The employee will have to argue that s/he had no other option but to resign, because the vaccination policy was unreasonable or made employment impossible.
Comments