On 11 June 2021, an update was published in the Government Gazette of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces.

Every Employer is obliged to conduct a risk assessment and make a decision as to whether it intends to make the Covid-19 vaccination mandatory taking into account the operational requirements of the workplace. If an Employer decides to make vaccination mandatory, it has to identity those Employees who are at risk by virtue of the type of work that they do or their risk for severe COVID-19 disease or death due to their age or comorbidities who have to be vaccinated. (Regulation 3)

On the basis of these risk assessments, the Employer has to develop a plan or amend an existing workplan which outlines the measures that the Employer intends to implement in respect of the vaccination of it’s Employees in accordance with both the updated Directive and Annexure C of the Guidelines attached to the Directive.

These Guidelines deal with the main aspects of a workplace policy that will require mandatory vaccination in the workplace but they may be departed from in certain circumstances, depending on the size and nature of the workplace.

The Guidelines do not substitute any collective agreement or agreed procedures between Employees and Employers or their organizations and trade unions.

The Guidelines emphasize that consideration holistically has to be given to the public health imperatives, the constitutional rights of Employees and the efficient operation of the Employee’s business.

Where an Employee has identified measures it wishes to implement in respect of the vaccination of it’s Employees in terms of the Directive and the Guidelines, the Employer has to notify those Employees identified as needing to be vaccinated of their obligation to be vaccinated, as when a vaccine becomes available for that Employee.

The Employee also has to be notified of his or her rights to refuse to be vaccinated on constitutional or medical grounds. The constitutional grounds applicable in these circumstances are the right to be bodily integrity in terms of Section 12(2) and the right to freedom of religion, belief and opinion in Section 13 of the Constitution. Medical grounds can include a range of different factors and should be assessed against the recommendations of medical practitioners.

The Employees identified to be vaccinated must be given an opportunity, at their request, to consult with a health and safety representative at the workplace, an Employee representative or trade union official.

Where the Employee refuses to be vaccinated on any constitutional or medical ground, an Employer has to Counsel the Employee and allow the Employee to seek guidance from a health and safety representative or trade union official and refer the Employee for further medical evaluation when a medical contra-indication for vaccination exists.

The Employer must also consider whether the Employee can be reasonably accommodated in a position that does not require the Employee to be vaccinated.

The Guidelines define reasonable accommodation to mean any modification or adjustment to a job or a working environment to enable the Employee who refuses to be vaccinated to remain in employment. Such measures can include allowing that Employee to work from home, work anywhere else off-site or in an isolated office within the workplace. Consideration may also be given to allowing the Employee to work outside the ordinary working hours. Where there may be limited contact between that Employee and other people in the workplace, a requirement that the Employee wear a N95 mask may also be considered.

Where Employees consent to a mandatory vaccine policy at the workplace, the Employer has to reasonably consider providing transport to and from the designated COVID-19 vaccination site for the Employees to be vaccinated.

Employers are obliged to provide Employees with information at the workplace which raises awareness of the nature of the vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccinations and the nature and risk of any serious side effects such as severe allergic reactions.

Employers should also give Employees administrative support to register on the Electronic Vaccine Data System Registration Portal for COVID-19 and give those Employees paid time off to get vaccinated if the vaccination date arranged for that Employee falls within ordinary working hours.

Where an Employee suffers side effects after being vaccinated and is unable to attend work following vaccination, the Employer has to place the Employee on paid sick leave and a Covid-19 vaccination certificate issued to the Employee by an official vaccination site may be accepted by the Employer instead of a medical certificate.

Finally, whilst Employees can refuse to be vaccinated, an Employer may be entitled to dismiss an Employee for operational reasons where the Employee cannot be reasonably accommodated elsewhere in the workplace as contemplated by the Guidelines to the updated Directives.

However, Employers should only embark on termination of employment processes in these circumstances very carefully, after having sought legal advice. The Employee could end up having a claim of unfair dismissal or unfair discrimination against the Employer in circumstances where the termination of that Employee, for exercising a right of refusal to be vaccinated for Covid-19, is procedurally and substantively unfair. Ultimately each case will have to be determined on it’s own merits and Employers will have to evaluate and decide matters in these circumstances by case basis.

Jayshree Moodley

Jayshree Moodley