On 11 June 2021, Covid vaccination guidelines were released, which are housed under the amended “Consolidated Direction on Occupational Health and Safety Measures in certain Workplaces” (the “Directive”).
The vaccination guidelines housed under the Directive are intended to guide all employers as well as employer organisations, employees, trade unions, conciliators, arbitrators and the courts in determining the fairness of a mandatory vaccination policy and its implementation.
Importantly in terms of the Directive, one must take note that any departures from the guidelines may and can be justified in proper circumstances, depending on the size or nature of the workplace.
Importantly, in order to give effect to one’s constitutional rights to freedom of choice, as weighted against the right to ensure a fair, healthy and sound workplace, persons and importantly employers must note that they are required to: ensure that they have a reasonable and justifiable reason for implementing a mandatory vaccination policy; and that they have balance their employees’ constitutional rights when deciding to implement and apply such a policy.
Following this when making this determination, employers should always be guided by fairness and their specific circumstances.
In terms of the Directive and guide, every employer must undertake a risk assessment within 21 days of the coming into force of the amendment to the Directive. i.e by Friday 2 July 2021.
This risk assessment must take into account:
- the operational requirements of the workplace;
- whether the employer intends to make vaccination mandatory; and
- if so, identify those employees who must be vaccinated by virtue of the risk of transmission through their work or the risk of severe COVID-19 symptoms including death (due to their age or comorbidities) that must be vaccinated (“identified employees”).
On the basis of the risk assessments, employers must develop a plan or amend an existing workplace plan outlining the measures that the employer intends to implement in respect of vaccinating its employees in accordance with the Directive (the “vaccination plan”).
Importantly, the Directive states that “in developing and implementing a vaccination plan, an employer must take into account the [constitutional] rights of its employees to… bodily integrity…freedom of religion, belief and opinion”.
The Directive further states that an employer must also consider “public health imperatives … and the efficient operation of the employer’s business.”
As mentioned above, employers must undertake a delicate balancing act, harmonising their health and safety obligations, operational requirements with the constitutional rights of their employees.
Once a decision has been made to implement a vaccine program, then a vaccination plan must be developed which must include:
- The identified employees and why they must be vaccinated;
- How the employer will comply with its obligations in terms of the Directive; and
- Subject to any applicable collective agreement, whether the employer intends to make it mandatory for identified employees to be vaccinated as and when vaccines become available for them.
- How identified and affected employees will be notified of their obligation to be vaccinated as and when a vaccine becomes available;
o a detailed explanation of the employee rights to refuse to be vaccinated which have to be based on constitutional or medical grounds (i.e., bodily integrity, freedom of religion, belief and opinion, and the possibility or risk of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine respectively); and
o how an employee may go about requesting a consultation with a health and safety representative, a worker representative or trade union official; in order to discuss the program, the reasons why it is in place and or any concerns;
Employees must also be advised under the plan of transport to and from the relevant vaccination site will be provided to them; and
- Finally employees should be advised under the plan of what they are to do, should they suffer side effects from the vaccine, and whether they will be provided time off from the workplace to recover if the employee , especially if the employee no longer is entitled to sick leave, whether COIDA is available and how he or she may go about obtaining assistance with a COIDA compensation claim.
The Directive states that employers need not take the same measures that they are required to take in respect of employees with COVID-19 related symptoms, such as isolating and assessing the risk of transmission, for employees who present with symptoms one to three days after the vaccination.
Further, as mentioned above, should an employee suffer side effects as a result of the vaccine and is unable to attend work, the employer must place the employee on paid sick leave or lodge a COIDA claim. An employer may accept a vaccination certificate issued by an official vaccination site in lieu of a medical certificate.
The Directive expressly recognises an employees’ right to refuse to be vaccinated on constitutional or medical grounds.
If employees refuse, employers should be careful not to dismiss their concerns out of hand.
Rather, they should:
- counsel employees and, if requested, allow them to seek guidance from a health and safety representative, worker representative or trade union official;
- refer employees for further medical evaluation should there be a medical contraindication for vaccination; and
- if necessary, take steps to reasonably accommodate them in a position that does not require them to be vaccinated.
“Reasonable accommodation” means any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. According to the Directive, this might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might require the employee to wear an N95 mask.
Following the decision to implement a vaccination programme, the employer must embark upon a Vaccine information campaign, in order to make all employees aware of the following:
- nature of vaccines used in the country;
- benefits associated with these COVID-19 vaccines;
- contraindications for vaccination; and
- nature and risk of any serious side effects such as severe allergic reactions.
Employers are furthermore directed to the information supplied on the National Institute of Occupational Health website which should be referenced when carrying out the campaign.
Employers must give employees administrative assistance in registering on the Electronic Vaccine Data System Registration Portal for COVID-19.
Employers must also give their employees paid time off to be vaccinated, provided that employees provide proof of the vaccination that has occurred or is to occur during working hours.
Where you employ more than 50 employees, such employers are required to submit a record of their risk assessments, together with their vaccination plans, to their health and safety committees.
These records must also be available for any inspection conducted by the Department of Employment and Labour.
The Directive provides guidance for employers who are considering whether to implement a mandatory vaccination policy within their workplace.
Significantly, the Directive does not prescribe whether employers may or may not require employees to be vaccinated. This is a decision that employers must make following a risk assessment, taking into account the risk to its employees, its business imperatives and the employees’ countervailing constitutional rights.
Employers are encouraged to conduct their risk assessments within the 21-day deadline and, where applicable, prepare their vaccination plan.
Should employers require any assistance in determining their obligations or preparing the relevant documentation, we recommend that they seek advice from their chosen legal practitioner.
Employment | Executive
Employment | Candidate Legal Practitioner