The third wave of COVID19 has hit the country hard and new cases keep increasing daily. In the workplace employers may be wondering whether it is legally permissible for them to require employees to be vaccinated and make vaccinations compulsory.
The Minister of Employment and Labour has issued the Amended Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces. Under the directions, employers must undertake a risk assessment to determine whether it will make vaccinations mandatory, based on its operational requirements. Directions 1, 3, 4 and 6 have been amended to include provisions relating to vaccinations.
If the employer intends to make vaccinations mandatory, it is required to identify the employees for whom vaccination are mandatory, based on their risk of transmission of Covid-19 through their work, and/or their risk for severe Covid-19 disease or death, due to factors such as age or comorbidities.
It is important to note that employers do not have to implement a vaccination policy that requires all employees to be vaccinated, the policy can also require only certain employees who are at risk, as assessed in the risk assessment, to be vaccinated.
Employers must also develop a plan or amend their existing plan to outline the measures they intend to implement in respect of the vaccinations of the employees as per section 3 of these directions.
It is also essential to take note that employees have a right to bodily integrity as well as the right to freedom of religion, belief and opinion in terms of sections 12 and 13 of the Constitution. Therefore, some employees may refuse to get vaccinated. Employers must take the rights of those employees into account when developing and implementing such plan. Employers should attempt to find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and / or constitutional grounds.
Employers should in an attempt to resolve the matter, counsel such employees and allow them to seek guidance from a health and safety representative, worker representative, trade union official or refer such employees for further medical evaluation, if there is a medical contra-indication for vaccination.
The employer should also take steps to reasonably accommodate an employee in a position that does not require him/her to be vaccinated. This might include an adjustment that permits the employee to work at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours, where possible. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask at all times.
Therefore, an employee may refuse to be vaccinated and as per the above proposed measures the employer should attempt to address this refusal by any means possible, which shall include to investigate alternatives to accommodate the employee in line with the employer’s operational requirements.
It still remains to be seen whether the termination of employment due to a refusal to be vaccinated in line with company policy shall be justified and upheld by the CCMA, the relevant Bargaining Councils and our Courts.
The challenge hereto is that the guideline indicate that employers and employees should treat each other with mutual respect and furthermore that a premium is placed on public health, the constitutional rights of employees and the efficient operation of the employer’s business. It is these conflicting values that makes this a contentious issue and will most definitely pose a serious challenge to our Courts when having to strike a balance between these different and conflicting values and principles when adjudicating on issues such as this. Contact iR Worx directly should you require guidance on any Industrial Relations and Employment Law matters in the workplace.