Whilst government has made it clear that it does not intend on making Covid19 vaccination compulsory for citizens of our country, it remains to be seen how factors such as the availability of the vaccine and the possible mutation of the virus would impact this position in the years to come.

With government implementing its vaccine rollout campaign, employers may give some thought to implementing a mandatory vaccination policy in the workplace. However, many may be uncertain about the implementation of the policy, what factors to consider, what steps to take.

Currently, there is no law prohibiting an employer from implementing a policy that will place an obligation on its employees to be vaccinated. This may become a much-needed risk-mitigating tool, especially to health professionals or nursing homes, for example. Whilst some time may pass before the vaccine is available to the general public, employers should familiarise themselves with the applicable legal principles and, where necessary, consult and educate employees before implementing a mandatory-vaccine workplace policy.

The Constitution
Compelling an employee to undergo vaccination may limit certain constitutionally entrenched rights such as the right to dignity, bodily integrity and the right to freedom of religion, belief and opinion. However, the constitution also sets out certain circumstances under which certain rights may be limited, such as the nature of the right in question, the extent of the limitation, the importance of the purpose, the relation between the limitation and the purpose and less restrictive ways of achieving the same purpose. Courts consider whether the limitation is reasonable and justifiable. It remains to be seen how courts will measure the concept of what is considered reasonable in this regard.

Summary of the new Consolidated Directive dated 11 June 2021
The Department of Labour issued its consolidated directive on Occupational Health and Safety Measures in the workplace on 11 June 2021, which combines previous directives but also provides some guidance to decision-makers in determining the fairness of a mandatory vaccination policy.
The directive provides that an employer should, inter alia –

  • notify the employee of its right to refuse on medical or constitutional grounds,
  • transport the employee (or to provide such) to and from the vaccination site;
  • where an employee falls ill as a result of symptoms associated with taking the vaccine, give the employee paid time off to recover and where he no longer qualifies for sick leave, submit a claim under the COIDA act.

Where the employee refuses to be vaccinated on medical or constitutional grounds, the employer will be obliged to either notify the employee of his/her right to consult with a health and safety/union or counsel the employee.

The employer should, where the vaccine may impede the health of the employee, seek to reasonably accommodate the employee in a position that may not require him/her to be vaccinated.

Reasonable accommodation for employees who refuse or cannot comply due to health reasons will be dealt with in accordance with the Code of Good Practice of Employment of Persons with Disabilities in terms of the Employment Equity Act, to which the directive refers. Measures will include the option of working remotely, in isolation or the requirement to always wear a N95 mask.

Only time will tell how courts will deal with this issue and the concept of fairness when it comes to implementing compulsory vaccination policies.

Practical considerations
Herewith a few factors to be considered by employers before drafting or implementing

  1. The viability of alternatives such as masks social distancing. How effective have these measures been historically. Where ineffective, what are the reasons therefor? In many cases, some of these measures were ineffective, mostly because employees failed to adhere to these rules, for instance, not wearing masks. The employer may then remedy this situation by merely warning employees or implementing stricter health and safety protocols.
  2. The nature of the workplace
  3. Past trends of infection in the workplace
  4. The possible risk to third parties if employees are not vaccinated
  5. Exposure to high-risk environment/public
  6. The possibility of working remotely
  7. The financial implications – can the employer afford vaccinations to be administered

The application of POPI
The provisions of the Protection of Personal Information Act of 4 of 2013, applies with regards to the employees’ vaccination history and medical information. All personnel records should be kept locked with limited access, and one responsible person, preferably the appointed information officer, should account for the safety and secure storage of such information in terms of strict protocols and policies.

Conclusion
The drafting and implementation of a policy that limits an employee’s constitutional right to dignity, bodily integrity or any right should not be considered lightly by any employer and should not be embarked upon without first seeking specialised advice. Certain issues discussed above, may give rise to potential litigation in addition to staff morale being negatively affected. It is advisable to thoroughly consult and assess the working environment, explore alternatives and educate and encourage staff to accept and agree to a policy in a positive manner in the spirit of fighting this pandemic.

 

Article by: Janeske Greeff

Dispute Resolution Official – Cape Town