Employees' rights, and when the Covid-vaccine may be compulsory in the workplace
18 June 2021, Sinenhlanhla Khoza
As a regular reader of my blog, you may recall that I have in the past discussed the circumstances under... which an employee may possibly be dismissed for refusing to take the Covid-19 vaccine. We further had discussed therein that, at that time, there was no law in South Africa that obligated an employee to receive the Covid-19 vaccine. This has recently been changed by the Minister of Employment and Labour through the publication of the Amended Consolidated Direction on occupational Health and Safety Measures in certain workplaces.
The Direction was published on the 11th of June 2021 and it effectively came into effect on the date of its publication. This Direction amends the Direction that had been issued by the Minister in October 2020 regarding occupational health and safety in the workplace. The major amendment to the old Direction is, amongst other things, the introduction of employee vaccination in the workplace.
According to the latest Direction, every employer not specifically excluded therefrom must, within 21 days of the amendments in the Direction coming in to effect, undertake a risk assessment as to whether it intends to make vaccination mandatory depending on the employer’s operational requirements and if so, to identify employees who must be vaccinated by virtue of the risk of assessment through their work or their risk of severe Covid-19 diseases or death due to their age or comorbidities.
The employer must further develop or amend an existing plan outlining the measures it intends to implement in respect of the vaccination of its employees in accordance with the Direction and/or any applicable collective agreement. In the development and implementation of this plan, the employer is obligated to take into account the constitutional rights of its employees to bodily integrity, the right to freedom of religion, belief and opinion.
The Direction further contains guidelines which any employee may follow if their employer requires employees to be vaccinated and states that a plan that requires employees to be vaccinated in accordance with the national vaccination roll-out plan should provide for the following:
The duty of the employer to inform every employee of the obligation to be vaccinated as and when a vaccine becomes available, the right of refusal by an employee to be vaccinated due to constitutional or medical grounds, the opportunity of an employee, at the employee’s request, to consult a health and safety representative, or a worker representative or trade union official.
The duty of an employer to provide transport to and from established vaccination sites, if it is reasonably practicable.
The duty of the employer to grant paid sick leave should the employee suffer side effects and is unable to attend work due to vaccination or to lodge a claim in terms of the Compensation for Occupational Injuries and Diseases Act.
Importantly, the Direction recognises and maintains an employee’s right to refuse vaccination on any constitutional or medical ground. Should the employee do so, the employer may counsel the employee or allow the employee to seek guidance from a health and safety representative or trade union, may refer the employee for further medical attention should there be a medical contraindication for vaccination, or take steps to reasonably accommodate the employee in the position that does not require vaccination according in the employer’s vaccination plan. In conclusion, the Direction places high importance on the imperatives of public health, the constitutional rights of employees and the efficient operations of the employer’s business, therefore consulting a labour law practitioner prior to the development or amendments of such plans or policies is advisable to ensure that a proper balance is maintained between these competing interests.