On June 11, 2021, the South African Department of Employment and Labor released guidance on workplace immunization policies, in the form of an amendment to the Consolidated Health Measures Directive and occupational safety in certain workplaces. Employers who wish to implement a mandatory vaccination policy must undertake a risk assessment by July 2, 2021.
Employers who wish to implement a mandatory vaccination policy must undertake a risk assessment by July 2, 2021.
More in detail
After months of speculation, the South African Department of Employment and Labor has provided advice on workplace vaccination policies. On June 11, 2021, the Minister published an amendment to the Unified Directorate of Occupational Health and Safety Measures in Certain Workplaces (Directive), which provides that employers implement a compulsory vaccination policy at their place of work. job.
Before an employer implements such a policy, it must carry out a risk assessment within 21 days of the publication of the directive, that is to say before July 2, 2021. This risk assessment must :
- take into account the operational requirements of the employer;
- indicate whether it intends to implement a compulsory vaccination policy;
- identify the employees who will need to be vaccinated based on the risk of contracting COVID-19 at work or the risk of severe symptoms of COVID-19 due to the employee’s age or comorbidities; and
- be conducted in accordance with sections 8 and 9 of the Occupational Health and Safety Act, which obliges the employer to maintain a working environment for its employees and others that is safe and, to the extent possible, free from health risks.
Developing a plan
The employer must then develop a plan that sets out the measures they will take to ensure a safe workplace for their employees. This plan should indicate whether the employer intends to make the vaccine mandatory for all employees, and should identify which employees will need to be vaccinated, the process that will be followed to ensure compliance with the directive and whether the employer is considering to make the vaccine compulsory as it is made available to employees. Any employer who considers that the vaccination of its employees is necessary for their health and safety can implement a compulsory vaccination policy. The employer’s risk assessment should, however, support this requirement and indicate that there is a legitimate need for workforce vaccination.
Right to refuse
The directive sets out guidelines for employers when developing and implementing a compulsory vaccination policy. In terms of the guidelines, importance is given to “public health, the constitutional rights of employees and the efficient functioning of the employer’s business”. When an employer makes vaccination mandatory, they must notify each employee identified in the plan that that employee should be vaccinated as the vaccination becomes available, and that the employee can consult a health and safety worker. security or a union representative, should the employee wish to do so. In addition, the employer must inform the employee of his right to refuse the vaccine for medical or constitutional reasons. These grounds are specified in the guidelines and provide that an employee may refuse the vaccine on the medical basis of a vaccine ‘contraindication’ (i.e. an allergic reaction to the first dose of the vaccine or vaccine component), or the constitutional basis for the employee’s right to bodily integrity and / or the right to freedom of conscience, religion, thought, belief and opinion, such as set out in Articles 12 and 15 of the Constitution.
The Directive prescribes that when an employee raises any of these objections, the employer is required to counsel the employee, refer them to such an employee for a medical evaluation for any allergic reaction to the vaccine and, if necessary, to reasonably accommodate the employee in accordance with the Code of Good Practice: Employment of Persons with Disabilities, as published under the Employment Equity Act. Such reasonable accommodation may include allowing the employee to work off-site, at home, in isolation in the workplace or, in limited circumstances, the employer may require the employee to work with a mask N95.
When an employer implements a mandatory vaccination policy and an employee refuses to be vaccinated, the employer must ensure that the reasons for refusal are fully taken into account and that the employee is consulted on the reasons invoked. However, if the employer is unable to reasonably accommodate the employee and the employee continues to refuse to be vaccinated, an incapacity procedure must be followed before the employer can terminate the employment contract. the employee.
Under section 4 (1) (k) of the Directive, employers must grant employees paid leave on the date and time of their vaccination, whether or not such vaccination is part of a safety policy. vaccination, and sick leave should be used if an employee experiences unwanted side effects from the vaccine. An employer may request proof of vaccination upon return to work, or proof that vaccination will take place during working hours. When an employee is vaccinated as part of the mandatory vaccination plan, the employer must grant the employee paid leave for the unwanted side effects of the vaccine, even if the employee has exhausted their sick leave entitlements. Alternatively, the employer can file a claim with the Compensation Fund, in accordance with the law on compensation for industrial accidents and occupational diseases. In addition, the employer should arrange transportation to and from the vaccination site, if possible, for employees identified in the mandatory vaccination policy.
In order to comply with the directive, employers must update their workplace risk assessment, taking into account all employees who need to be vaccinated. Employers should be aware of the timeframe provided for in the directive and ensure that the plan is in place before the 21 day period expires. It is important for employers to carry out the risk assessment objectively and to determine the real need for vaccination in the workplace and among certain categories of employees. In addition, any objection raised by an employee should be taken seriously and the employer should try to accommodate that employee to the extent possible. However, the employer can dismiss the employee for incapacity as a last resort.