In terms of the media statement dated 14 June 2021, issued by the Minister of Employment and Labour, Thulas Nxesi, it was stated that employers should find a reasonable solution for all parties where employees refuse to be vaccinated for medical and constitutional reasons. This was gazetted in the new direction on occupational health and safety measures in certain workplaces.

The guidelines provide that, “the key principle is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.”

In essence, currently, there is no law prohibiting an employer from implementing a policy that will place an obligation on its employees to be vaccinated. 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, in the United States, it seems to differ, and as per an article published by Ben Kimmel in the New York LaborPress Org. on 26 August 2021, he states that there are still ongoing questions about Covid vaccinations still abound and confirms that some employers are mandating employees to get vaccinated or vacate their positions. But some employees disagree with this notion and are fighting back, claiming that this mandate is unconstitutional and a violation of AMA’s Code of Medical Ethics.

In South Africa, however, the Consolidated OHS Direction now requires an employer to include in its risk assessment whether it intends to make vaccinations compulsory. This is a three-step enquiry:

  • Firstly, it must make that assessment taking into account the operational requirements of the workplace. This means that the direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
  • Secondly, if the employer decides to make it 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 can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities. In other words, not every employee poses such a risk – for example, workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.
  • Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available in respect of those employees, taking into account the Guidelines set out in Annexure C of the June 2021 version of the direction. Given the phased nature of the National Vaccination Programme based on criteria determined by NDOH from time to time, an employer may only make it an obligation once the employee becomes eligible under the programme for vaccination and has been registered on the Electronic Vaccination Data System and given a date for vaccination.

From the above, it is clear that where operations will require employees to work in close quarters and/or work with the general public, mandatory vaccinations will be allowed in future.  These types of scenarios will also start appearing on a regular basis now that the vaccination rollout covers the entire “adult” population.

If an employee refuses to get the vaccine, an employer has to respect ones’ right to make that choice as the right is protected in our Constitution. However, as a world, we are undergoing difficult times, and Covid, with its variants, have refused to let us go.  It will thus remain a process of weighing alternative rights against each other.  Where the employee refuses, his/her choice will need to be respected, but in turn, it might very well lead to his/her termination if the correct operational atmosphere exists.

I concur with Mr. Kimmel’s statement that we need to stop arguing, and trying to change views and opinions, but simply try to control the situation as best as possible by adhering to safety protocols, social distancing, wearing a mask, and taking good care of yourself.

In conclusion, employers need to make the necessary assessment of their operational requirements and employee services before implementing any policy-making vaccinations mandatory.

Article by: Natasha Govender
Collective Bargaining Co-ordinator / Dispute Resolution Official – Pretoria