The Department of Employment and Labour, on 11 June 2021, published consolidated directions on measures to prevent and combat the spread of Covid-19 in workplaces.
The directions are, to a large extent, simply a consolidation of previous directions which employers are already obligated to comply with.
However, the directions now place an obligation on employers to, within 21 days from date of publication, conduct a risk assessment to determine whether it will make vaccinations mandatory for their employees. This decision must be based on the operational requirements of the workplace, as well as the employer’s obligation, in terms of the Occupational Health and Safety Act, to promote a safe and healthy working environment.
This decision may not be in contradiction to any existing collective agreement in the workplace.
Should the employer decide to impose mandatory vaccinations, it must identify those employees who must be vaccinated due to their risk of transmission through their work or their risk of severe Covid-19 disease or death due to age or comorbidities.
The employer must take into account the Constitutional rights of employees to bodily integrity and freedom of religion, belief and opinion, and any employee may refuse to be vaccinated on these grounds or any medical grounds.
Should an employee refuse to be vaccinated on any of these grounds, the employer should, if necessary, take reasonable steps to accommodate the employee in a position that does not require vaccination. These steps include modification or adjustment to a job or working environment that will allow such an employee to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities, as contained in the Employment Equity Act.
The right of an employer to impose mandatory vaccinations where it deems fit, does not place an obligation on the employer to do so. However, it does pose significant risks for employees should an employer implement such a plan.
Employees may well have the right to refuse to be vaccinated on constitutional or medical grounds, which in turn obligates the employer to take reasonable steps to accommodate such an employee, but such refusal may well lead to an occupational detriment or even dismissal if an employer cannot take reasonable steps to accommodate such an employee, as such accommodation would cause undue hardship for the employer.
An employee may, justifiably so, feel hard done by if he/she is dismissed for refusing to be vaccinated on constitutional or medical grounds, particularly where the available vaccines are untested, insofar as normal testing protocols for vaccines are concerned, and where the potential long terms effects of the vaccines are unknown.
The implementation of a vaccination plan is also not without risk for the employer which will, without a doubt, be faced with dismissal claims, based on discrimination, where employees are dismissed for refusing to be vaccinated. It will be for the employer to show that accommodation of an employee, as a result of a plan implemented by the employer, would have caused undue hardship for the employer. This will, obviously, not be an easy burden to discharge.
It’s difficult to comprehend that, in a country that prides itself on the protection of constitutional rights, the rights of an employee can so easily be violated by the stroke of a pen, placing his/her health, employment and financial security at risk.
In light of the risks contained in the directions, for both employers and employees, NEASA cannot support or advance the directions pertaining to mandatory vaccinations.
Gerhard Papenfus is the Chief Executive of the National Employers' Association of South Africa (NEASA).