On 11 June 2021, the Department of Employment and Labour published an Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“Directions”).
The Directions provide various guidelines to employers pertaining to social distancing, the wearing of cloth masks, COVID-19 symptom screening and the importance of adequate ventilation in the workplace. Most importantly, however, the Directions make express provision for employers to implement policies within their respective workplaces which makes COVID-19 vaccination mandatory for its employees.
At present, the Directions, as the title denotes, operate only in respect of specific business sectors, but it is expected that the Directions will shortly be expanded to include all employers and to allow for the implementation of mandatory vaccine requirements across all business sectors.
Article 3 of the Directions requires that employers who intend to implement mandatory vaccination policies, must first undertake a business-wide risk assessment in respect of all their employees in order to determine whether there is a need to make vaccination mandatory. Such assessments must be completed within a period of 21 days of the effective date of the Directions. Regardless of the restrictive timeframe afforded to employers, the Directions contain no express prohibition to an employer conducting such risk assessments, and implementing a mandatory vaccine policy, outside of the window prescribed. The central consideration is that the risk assessments must be done prior to the implementation of any policy in a particular workplace making vaccination against COVID-19 obligatory for employees.
As part of conducting the said risk assessments, an employer must investigate and determine the potential effects of implementing a mandatory vaccination policy. The investigation must comply with sections 8 and 9 of the Occupational Health and Safety Act, 85 of 1993, and must take into account the operational requirements of the workplace and the risks associated with its employees contracting severe cases of COVID-19 or the potential risk of death which may be hastened by virtue of the employees’ age and/or comorbidities. Other relevant considerations when conducting these risk assessment investigations include, but are not limited to:
- Task identification. Employers will need to identify those tasks which need to be performed by vaccinated employees as a result of the potential risk of transmission. This requires a consideration of the person performing the task and the nature of their transactions with others (e.g., co-workers, suppliers, clients and/or customers).
- Exemptions. Employees may have sufficient grounds for motivating against mandatory vaccination on medical grounds which will suffice only where an immediate reaction (of any degree or severity) to a previous vaccine dose, or a known (diagnosed) allergy to a component of the COVID-19 vaccine dispensed, can be shown.
- Risk of transmission. Employers must investigate and identify employees who will be required to be vaccinated by virtue of an increased risk of transmission in the workplace. This will include, for example, employees who work in close proximity to other employees or employees who have daily and prolonged exposure to clients / customers of the employer.
Regardless of a decision by an employer to implement a mandatory vaccination policy by reason of its operational requirements, it is by no means a certainty that every employee will need to be vaccinated. Once the risk assessment exercise has been completed, an employer may decide to mandate vaccination only for employees who have been identified as being particularly susceptible to infection or death. This may be so even in the event that the risk assessment finds that the risk of transmission in a particular workplace is low.
Following the risk assessment, and as per Article 3(1)(b) of the Directions, employers must develop a plan setting out the measures it intends to impose regarding the vaccination of the employees and must consult on such plan with any relevant representative trade union and/or health and safety committee, where applicable. In terms of Article 3(4) of the Directions, when developing and implementing a mandatory vaccination plan, an employer must consider the constitutional rights of its employees including the right to bodily integrity and the right to freedom of religion, belief and opinion as set out in section 13 of the Constitution.
All mandatory workplace vaccination policies must contain provisions and mechanisms allowing employees to apply for an exemption from complying with a mandatory vaccination policy by reason of either (i) medical grounds; and/or (ii) constitutional grounds.
Refusal to be vaccinated
If an employee refuses to be vaccinated on any constitutional and/or medical grounds, the employer bears the obligation first to counsel the employee (or to arrange for them to be counselled), to refer employees for further medical evaluation should there be a medical contra-indication for vaccination and if necessary, to take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
In terms of the Directions, the reasonable accommodation of objecting employees includes any modification or adjustment to a job or to the working environment that will allow an employee who fails and/or refuses to be vaccinated to remain in the employer’s service. Such measures may include a requirement that an employee works from home or in isolation within the workplace and/or that the employee wears an N95 mask, or other PPE which offers an equivalent level of protection.
An employee who cannot be accommodated in the ways outlined above, may have his/her employment terminated on incapacity grounds provided that the proper process and procedures as outlined in the Code of Good Practice: Employment of People with Disabilities are adhered to by the employer. However, such a drastic step must only be considered as a final resort.
An employer’s decision to terminate the employment of an unvaccinated employee will only be valid to the extent that the original direction to employees, and the process followed for the implementation of the mandatory vaccination policy, was in fact lawful and reasonable.
Employers have to undertake a thorough risk assessment before implementing a mandatory vaccination policy. The services of employees who refuse to be vaccinated may be terminated in certain circumstances, but not before the employer has attempted to reasonably accommodate such employees as set out herein.
For assistance and guidance with regard to the drafting of mandatory vaccination policies and/or its implementation, please do not hesitate to contact us and we will gladly assist.