By Thornton van Wyngaardt
A controversial issue on the table at the moment is the Department of Employment and Labour recently amended directive on Occupational Health and Safety measures in certain workplaces published in Government Gazette No. 44700 on 11 June 2021.
The directive is applicable to all employers that are permitted to continue business operations under the Regulations made under section 27(2) of the Disaster Management Act 57 of 2002, and as such essentially apply to all employers operating in South Africa. The directive contain certain obligations on employers in relation to the mandatory vaccination of employees, it is critical that employers be aware of these requirements and start taking steps to ensure compliance with the regulations.
In this case, I would say an employer has a duty to do what is reasonably practicable to ensure that the working environment is safe for all employees and those who access their workplace. Where an employer based on their risk assessment of their workplace decide to implement mandatory vaccinations in light of their duty to ensure a safe working environment, will be dependent on the availability of the vaccine, the cost of the vaccine, the objections of employees, the safety of the vaccine and the effectiveness of other measures implemented by the employer to mitigate the risks of infection in their workplace.
As per the directive an employer would have to consult with the Health and Safety Committee appointed in terms of the Occupational Health and Safety Act before the implementation of a mandatory vaccinationpolicy and to make available a risk assessment and workplace plan for inspection by the health and safety committee.
Employees who subscribe to an anti-vaccine ideas are likely to resist mandatory vaccinations in the workplace in broadly two general categories:
Medical objections and safety concerns: employees in high-risk categories who may suffer adverse effects from a vaccines or those having a compromised immune system may object to being vaccinated. In addition, employees who have shown no signs of the virus over the period of the pandemic or those who have contracted the virus may also elect not to be vaccinated.
I would suggested medical objections or the application for exemption from mandatory vaccinations will need to be assessed on a case by case basis. Social media has a tendency to blow speculation out of proportion and one or two adverse reports from vaccinations that show adverse side effect cannot conclusively prove that every person vaccinated will experience the same adverse side effects.
Religious, cultural or philosophical objections: employees may also object to being vaccinated based on the incompatibility between their religious or philosophical beliefs and vaccination policies. This includes both superstitious beliefs and beliefs rooted in the interpretation of religious text. In addition, employees may also raise objections to being vaccinated because the vaccines may include substances such as swine, whose consumption is prohibited for religious reasons, or for various other cultural or philosophical beliefs pertaining to the consumption of animal products or the manner in which vaccines are tested.
In light of the above, for mandatory workplace vaccinations to constitute a constructive dismissal, the employee must show that they had no other option but to resign and that the vaccination policy of the employer rendered continued employment intolerable and was unreasonable. A successful claim for constructive dismissal on the basis that an employer failed to reasonably accommodate an employee pursuant to their refusal to adhere to a mandatory vaccination policy or the refusal by an employer to exempt them from the mandatory vaccination policy will be fact dependant and will be assessed on a case by case basis.
It appears that these directives are aimed at ensuring that every employer update their risk assessments and their plan for protective measures in light of the third wave of Covid-19 and the vaccine rollout in South Africa. The directive seek to ensure that employers plan for protective measures and take into account any subsequent governmental and health changes introduced since the implementation of their existing plans.
The directive however steer clear from outlining any definitive consequences that may arise if employees refuse to be vaccinated in circumstances where employers have implemented mandatory vaccinationpolicies. Whether employers will be entitled to dismiss employees who refuse to be vaccinated will consequently be determined with reference to the employer’s and employee’s particular circumstances. As with all matters dealing with employment relations the principles of fairness and equity will need to prevail.
This document does not provide a position that endorses or opposes mandatory COVID-19 vaccination. Rather, it identifies important ethical and legal considerations that should be evaluated and discussed within every organisation to ensure policy-makers who may be considering mandates for COVID-19 vaccination.
Feel free to contact us for a complementary 30min online risk assessment relating to mandatory vaccination of employees in your workplace.