Is it lawful for an employer to implement a policy to regulate under what circumstances employees would be allowed to access the employer’s premises during the Covid-19 pandemic?
In the matter of Solidarity on behalf of its members and Another v Ernest Lowe, a division of Hudaco Trading Pty Limited the Labour Court (LC) recently considered the lawfulness of an employer’s policy regulating how employees would be allowed access to the premises.
The employer implemented a policy that it would only admit employees to its premises who had been either fully vaccinated and provided proof of vaccination or, in the case of employees who chose not to vaccinate or disclose their vaccination status, if they could produce a negative Covid-19 test result every 7 days, at their own cost.
The employee refused to be vaccinated but opted to take a weekly test for Covid-19, but only if the employer paid for it. The employer would not do so, and the employee was denied access to its premises.
The employee further consulted a medical practitioner, who issued a “Covid-19 vaccination exemption form” recommending that she avoid the Covid-19 vaccine because of “cardiac arrhythmia”. The employer stood by its admission policy and required further information about this medical condition, which included an independent specialist review on the condition. An ECG report was provided to the employer, but no cardiologists’ report was forthcoming, the employer stood by its position and stated that the employee would not be granted any exemption and that the admissions policy applied.
The employee’s union, brought an urgent application to the Labour Court seeking an order, declaring the admission policy unlawful and directing the employer to permit the employee to tender her services in terms of her contract of employment. The union brought the application on the basis that the admission policy constituted a mandatory vaccination policy, and further that the policy was in breach of the employees’ contract of employment.
The Labour Court ruled that clause 8 of the OHSA (Occupational Health and Safety Act) is clear. It requires employers to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees (this duty existed before Covid-19 and remains unchanged); and the Direction has the status of binding law in the form of subordinate legislation.
The Labour Court also ruled that the admission policy provided employees with an option to vaccinate and provide proof of vaccination and, if they chose not to do so, to provide weekly Covid-19 test results (at their own cost). It was held that this admissions policy does not constitute a mandatory vaccination policy, in that employees are given a choice to either vaccinate or provide a negative test, that they are not required to disclose their vaccination status, that the policy does not determine that only vaccinated employees would be permitted to the workplace.
On this basis, the LC was unable to find that the admission policy constituted a mandatory vaccination policy.
The Labour Court also held that the admissions policy was not in breach of the employees’ contract of employment, nor was there any unilateral amendment to the employees’ contract of employment.
The Labour Court ultimately held that the employer was discharging its statutory duty to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to its employees’ health. The application was dismissed.