MANDATORY COVID-19 VACCINATION IN THE WORKPLACE
As the COVID-19 vaccination roll-out gains momentum, with citizens between the ages of 18 and 34 are now able to register for the vaccine, the question remains: can an employer introduce mandatory COVID-19 vaccinations in the workplace?
It is common cause that employers are under an obligation to ensure a safe working environment for its employees, part of which obligation may include enforcing mandatory COVID-19 vaccinations, however, Government has made it clear that, whilst individuals should be encouraged to have the vaccine, it will not be a requirement for South African citizens to become vaccinated, and employees accordingly, under certain circumstances, have the right to refuse a vaccination based on Constitutional and/or medical grounds.
Where does this leave an employer who wishes to introduce mandatory vaccinations?
Government issued a revised Direction on Health and Safety in the Workplace, which includes very brief guidelines for employers who are contemplating introducing mandatory vaccinations, and which guidelines include, but are not limited to the following:
- An additional risk assessment must be concluded, within 21 days of the date of the Directive, by employers to determine:
- whether it intends to make vaccination mandatory and if, so
- employees, who by virtue of the risk of transmission through their workor their risk for severe COVID-19 disease, or death due to their age or comorbidities, must be vaccinated.
- Employers must develop a plan and/or amend existing Workplace Plans to outline the measures that the employer intends to implement in respect of the vaccination of the employees identified in the risk assessment.
- Employers, in developing and/or amending the plans, must take into account the rights of its employees to bodily integrity and the right to freedom of religion, belief and opinion (sections 12(2) and 13 of the Constitution), and any collective agreement concluded.
In accordance with annexure C to the amended direction, employers who, after concluding the above mentioned, should include the following when formulating their own policies:
- Employees identified for a vaccination should be notified of the obligation to be vaccinated as and when the vaccine is available.
- Employees should be notified of their right to refuse to be vaccinated.
- Employees should be notified of their right to consult a health and safety representative, a worker representative or a trade union official.
- Where reasonable and practically possible, the employer should provide transport to and from the vaccination site allocated.
If an employee refuses to undergo a COVID-19 vaccination, on the grounds mentioned above, employers should conduct an enquiry into the validity and reasonableness of the refusal, where after an employer is obliged to take the necessary steps to reasonably accommodate such an employee.
Where reasonable steps to accommodate an employee are not possible, and the business of the employer will suffer an unjustifiable hardship, subject to the merits of each case, the employer may consider entering into a process in order to terminate such an employee’s services in a fair manner, as provided for in the LRA.
However, as this is new ground, the Human Rights Commission announced that over 30 complaints have been filed at the Human Rights Commission in one week, from both employers and employees alike, who seek guidance on dealing with mandatory vaccinations, and considering that this is new and untested ground, it is well worth an employer’s while to obtain legal advice/assistance in drafting a policy in this regard.
Employers should further focus on steps that they can take to encourage employees to undergo a COVID-19 vaccination.