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With the virus now an intimate part of our lives globally, South Africans, like the rest of the world, are having to adjust laws and working environments in order for people to be able to work while co-existing with the always present Covid-19.
However, there is still a fair degree of ambiguity on mandatory vaccination policies in the workplace. Therefore, offering clarity on the hot-departed topic, Rob Russell of Labour Advice and Dispute Resolution Centre (LADRC) provides insight into the matter.
Russell explains that on 11 June 2021, the Department of Employment and Labour issued an Amended Consolidated Direction on Health and Safety, which sought to address the burning question of whether employers are permitted to implement mandatory vaccination policies in their workplaces.
“The Amended Direction required employers to conduct a risk assessment 21 days from its issue, i.e. on or before 2 July 2021.
The purpose of the risk assessment is to determine whether the employer intends to make vaccinations mandatory and, if so, to identify those employees to be vaccinated,” states Russell.
It is important to note that the workplace’s circumstances, the efficient operation of the employer’s business, and its operational requirements will determine whether an employer can justify the implementation of a mandatory vaccination policy.
Further stating, “For example, there are a large number of employees who are required to conduct their work in close proximity to one another, because the nature of the work, or the environment is such that social distancing presents a challenge, and/or where adequate ventilation may not be possible, the employer may be able to justify requiring employees to be vaccinated.”
In circumstances where an employer believes that mandatory vaccinations in the workplace are justified but has not yet conducted the risk assessment in this regard, the employer is encouraged to complete the risk assessment as soon as possible.
It may be prudent to provide reasons in the risk assessment for why it was not conducted within the allocated time period to mitigate the risks associated with not doing so, which are set out below.
In the event that the employer does not conduct the risk assessment as soon as possible, it may expose itself to a claim for constructive dismissal. Russell stresses, “An employee may resign and argue that continued employment was rendered intolerable by the employer, as a result of its failure to conduct the risk assessment and or develop the plan, both of which are necessary in order to implement a mandatory vaccination policy.”
According to Russell, the employer may also expose itself to the risk of industrial action if employees and their trade unions view that a mandatory vaccination policy constitutes a benefit to which employees are entitled.
The Amended Direction provides that a premium is placed on public health imperatives, employees’ constitutional rights, and the efficient operation of the employer’s business. This clearly indicates that employers are obliged to balance all of these competing rights and considerations before taking any decisive action.
“Employers are obliged to notify those employees that are identified for mandatory vaccination in its risk assessment and vaccination roll-out plan that they are entitled to refuse vaccination on medical (immediate allergic reaction of any severity to a previous dose or a known diagnosed allergy to a component of the COVID-19 vaccine) or constitutional (the right to bodily integrity in section 12(2) of the Constitution and the right to freedom of religion, belief and opinion in section 13 of the Constitution) grounds.”
The Amended Direction further provides that where an employee refuses to be vaccinated on constitutional or medical ground, 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 to the vaccine.
- If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
According to Russell, “reasonable accommodation” is described in the Amended Direction as any modification or adjustment to a job or the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. “It incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities. This might include an adjustment that permits the employee to work off-site or from home or in isolation within the workplace (such as working outside of ordinary office hours) or a requirement to wear an N95 mask.”
However, he notes, “The Amended Direction does not provide employers with any further guidance as to what steps should be taken where an employee fails and or refuses to be vaccinated.”
Considering this and studying the Direction, he stresses that on the face of it, employers will be permitted to dismiss employees who refuse or fail to be vaccinated in circumstances where the objection is not based on a valid medical or constitutional ground and where the employer cannot reasonably accommodate them.
In line with this, Russell adds, “However, employers are cautioned against implementing a process which could result in an employee’s dismissal for failing or refusing to vaccinate in the absence of taking considered legal advice as it is always necessary to consider each case on its own merits.”
Russell has supplied the following government notice from the Department of Employment and labour to offer additional insight for both employers and their respective employees for further guidance.
Click here: DOWNLOAD GOVERNMENT NOTICE
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