The key principle is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.
Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds.
If the employee continues to refuse vaccination, the employer must try to accommodate the employee with workplace measures (social distancing, isolation, PPE) or in a different position.
Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine.
The Consolidated OHS Direction stipulates that an employer may consider implementing mandatory vaccination however 4 requirements should be met and the CCMA Director also confirmed it:
- Consultation with the relevant employees in order to attempt to reach consensus (provide them with facts and statistic of covid infection and vaccinations and provide them with the risk versus benefits)
- Development plan should be
- The rights of an employee in terms of relevant legislation should not be infringed.
- A risk assessment MUST be conducted, by a specialist.
The Risk Assessment is a three-step enquiry:
- Firstly, the assessment must take into account the operational requirements of the workplace and most importantly the nature and circumstances of the business. The Direction does not make the vaccinations automatically mandatory, but rather advised that every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
- Secondly, if the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which of its employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities. In other words, not every employee poses such a risk – for example workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.
- Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available in respect of those employees, taking into account the Guidelines set out in Annexure C of the June 2021 version of the Direction. Given the phased nature of the National Vaccination Programme based on criteria determined by NDOH from time to time, an employer may only make it an obligation once the employee becomes eligible under the programme for vaccination and has been registered on the Electronic Vaccination Data System and given a date for vaccination.
{Compensation Fund will cover employees for injuries, illness or death as a result of receiving a Mandatory Covid-19 vaccine (Inherent requirement of the job or where vaccination is required based on the OHS risk assessment conducted)}
Objectives of the Risk assessment:
- To identify and assess the potential risk of exposure to Covid-19 virus at workplaces.
- To identify control measures and their effectiveness to reduce the risk of transmission of Covid-19 in a workplace.
- To inform the employer of the risk of potential exposure to Covid-19 virus and additional controls that might be required.
- Requirements for the protection of employees against hazardous biological agents (HBA) such as Covid-19.
The approach should be objective, and a balancing of interests should be done to. There are many pitfalls on this topic in labour law and therefore it is strongly recommended that you obtain the opinion of labour law attorney or specialist.
Therefore, for balance of interests only proceed with mandatory vaccines with the assistance and advice of specialists (Occupational Health practitioners) and labour law attorneys, who can advise you with legal certainty and secure your interests unerringly.
Avoid unnecessary costly and time-consuming litigation.