The controversial topic of mandatory vaccination policies has increasingly become a topic of conversation in recent weeks. As the national vaccine rollout gathers momentum, more businesses are starting to employ mandatory vaccine policies for their employees. This raises a number of questions, including whether or not any business can implement such a policy, and how they go about doing so.
Consolidated Direction on Occupational Health and Safety Measures
The Department of Labour published the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“Consolidated Direction on Occupational Health and Safety Measures”) on 11 June 2021. The Consolidated Direction on Occupational Health and Safety Measures provide that those businesses who intend to make Covid-19 vaccinations mandatory must first comply with a series of mandatory requirements, the first of which is to conduct a workplace risk assessment within 21 days from the coming into effect of the Consolidated Direction on Occupational Health and Safety Measures. The Department of Labour summarized the risk assessment in a media statement as a three-step enquiry –
- firstly, requiring the business to conduct the risk assessment taking into account the operational requirements of its workplace. The business must take into account its general duties under the Occupational Health Safety Act No. 85 of 1993 to provide a working environment that is safe and without risk to the health of its employees and other persons;
- secondly, if the employer decides to make vaccinations 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 will be required to be vaccinated, the employer must identify those employees whose work poses a high risk due to their age or comorbidities; and
- thirdly, having identified the employees who are required to be vaccinated, the business must amend its Covid-19 vaccination plan to include the measures that are to be implemented in order to vaccinate those employees as and when the Covid-19 vaccines become available in respect of those employees.
Risk Assessment Deadline
Employers who had intended to make vaccination mandatory had up until the expiry of the 21 days period after the Consolidated Direction on Occupational Health and Safety Measures came into force on 11 June 2021 to perform a risk assessment and identify employees that would have to be vaccinated.
It is not clear in terms of the Consolidated Direction on Occupational Health and Safety Measures what the consequences are if a business failed meet the deadline or what recourse a business has should they only decide to implement such policy after the deadline has lapsed.
Employee’s refusal to be vaccinated
Annexure C of the Consolidated Direction on Occupational Health and Safety Measures provide that should an employee refuse to be vaccinated in terms of a mandatory vaccination policy on any constitutional ground, such as the right to freedom of religion, belief or opinion, or a medical ground, such as the possible risk to side effects from taking the vaccine, the employer should –
- counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
- refer the employee for further medical evaluation should there be a medical contraindication for vaccination; or
- if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
Termination of Employment
The provisions of the Consolidated Direction on Occupational Health and Safety Measures make it clear that termination or dismissal of an employee for refusal to take the Covid-19 vaccine should not be considered lightly. Annexure C of the Consolidated Direction on Occupational Health and Safety Measures advises the employer to consider an adjustment to a position or to the working environment of an employee who fails or refuses to be vaccinated that will allow such an employee to remain in employment. The Consolidated Direction on Occupational Health and Safety Measures go so far as to stipulate suggested adjustments that might include permitting such employee to work offsite, at home or in isolation within the workplace such as an office or warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, the Consolidated Direction on Occupational Health and Safety Measures stipulates a requirement that the employee wear a N95 mask.
The topic of mandatory vaccination policies remains a highly controversial and sensitive matter. Employers that are considering employing a mandatory vaccination policy are advised to consult with its workforce on the matter and undertake a thorough risk assessment before implementing any such policy.
VDMA’s team of experts are available to assist you and your business with drafting and amending any business-related policies you might require.
Published 27 August 2021