It is apparent that government initially took the viewpoint that vaccination against Covid-19 should not be compulsory. However, it appears that the recently-promulgated Consolidated Directions on Occupational Health and Safety Measures (‘the Directions’)[1] signifies a very different approach.
Regulation 3 of the Directions places an obligation on an employer to undertake a risk assessment and implement preventative measures in the workplace within 21 days of the Directions coming into effect.[2] In particular, Regulation 3(1)(a)(ii) of the Directions grant employers the discretion to determine whether they intend making vaccination mandatory in the workplace. When an employer intends to make such vaccination mandatory, it is furthermore required to identify those employees who, by virtue of the risk of transmission through their work or their risk for severe Covid-19 disease or death due to their age or comorbidities, must be vaccinated.
Employers are, however, specifically required to consider the operational requirements of their businesses, the employees’ constitutional rights (those relating to bodily integrity, freedom of religion and freedom of belief and opinion) and any appropriate collective agreements.[3]
The required plan must address, amongst others, the following issues:
- the employer’s decision as to whether or not it intends to make vaccination compulsory, as well as the timing thereof
- the identification of those employees being of high risk in respect of the transmission of the Covid-19 virus
- the measures to be adopted when dealing with vaccination in compliance with the Directions[4]
There is also a duty to consult any representative trade union, as contemplated by s14(1) of the Labour Relations Act 66 of 1995 (‘the LRA’) and any health and safety committee established in terms of s19 of the Occupational Health and Safety Act 85 of 1993 (‘OHSA’) – or, in the absence of such committee, a health and safety representative designated in terms of s17(1) of the OHSA or employee representative.[5]
Regulation 4 of the Directions contains the administrative measures that an employer will be required to comply with when implementing a compulsory Covid-19 vaccination policy and includes the following:
- if the employer employs more than 50 employees, the employer must submit a record of its risk assessment plan together with any amendments and, specifically, the amendments dealing with compulsory vaccination (same to be submitted to the health and safety committee established in terms of s19 of the OHSA.[6]
- retain a written copy of the risk assessment plan and policy
- make such copy available to health and safety representatives appointed in terms of the OHSA and the inspectors of the Department of Employment and Labour (‘the Department’)[7]
- notify all employees of the contents of the Directions and the employer’s specific plan and manner in terms of which it wishes to implement the Directions[8]
- provide employees with the required information and raise awareness regarding, inter alia, the dangers of the virus, the manner of its transmission and the measures to prevent transmission, as well as the nature of vaccines utilised and the benefits associated with these vaccines (also focussing on the contra-indications for vaccinating and the nature and risk of serious side effects, such as severe allergic reactions)[9]
There is a general obligation on an employer to assist all its employees to register on the Electronic Vaccine Data System Rotation Portal for Covid-19 (‘the System’).[10] It is, however, apparent that such registration is not only for those employees subject to a compulsory vaccination policy.
In implementing a compulsory Covid-19 vaccination policy, an employer is obliged to give all its employees paid time off to be vaccinated during the hours that they are ordinarily at work, provided that such employees supply proof of the vaccination.[11]
Lastly, in terms of Regulation 4(2) of the Directions, if an employer decides that vaccination is compulsory in respect of employees identified, then the vaccination plan must also comply with any applicable collective agreement and take into account the guidelines as contained in Annexure C to the Directions.[12] And what happens in the event that an employee suffers side effects as a result of Covid-19 vaccination? – it is also clear that the relevant employer will be required to provide such employee with paid sick leave.[13]
In terms of the already-mentioned Annexure C to the Directions, and subject to any applicable collective agreement, amongst others, the obligation exists on an employer to notify all affected employees, subject to a compulsory Covid-19 vaccination policy, of the following:
- the obligation to be vaccinated as and when a vaccine becomes available
- the right to refuse to be vaccinated on constitutional grounds[14] or medical grounds[15]
- the opportunity to consult with a health and safety representative, worker representative or trade union official, should an employee elect to do so
If reasonably practicable, the employer is required to provide the affected employees with transport to and from the vaccination site allocated in terms of the System.[16]
What happens if an affected employee is suffering side effects as a result of the Covid-19 vaccine being administered? – the employer should give the employee paid time off to recover if the employee is no longer entitled to paid sick leave in terms of the Basic Conditions of Employment Act 75 of 1997 (‘BCEA’) or any applicable collective agreement or lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (‘COIDA’).[17]
Annexure C, per item 5(2), clearly sets out, as follows, the obligations of an employer if an employee refuses to be vaccinated on any constitutional or medical ground:
- counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official
- refer for further medical elevation, should there be a medical contra-indication for Covid-19 vaccination
- if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated
The aforesaid reasonable accommodation of an employee 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 the employ of the relevant employer. This may include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace, such as an office or a warehouse or working outside of normal working hours. In instances of limited contact with others in the workplace, it might include the requirement that the employee wears an N95 mask.[18]
It is apparent that an employer’s decision to make Covid-19 vaccination compulsory and its implementation and execution of such a policy will be scrutinised in terms of, inter alia, s6(1) of the Employment Equity Act 55 of 1998, as amended (‘the Employment Equity Act’). This statutory provision will be utilised by all role players, including the courts, to ensure that no employee is unfairly discriminated against in the execution of such employment policy or practice.
Of further significance is the requirement in Annexure C to the Directions[19] that the relevant portions of the Code of Good Practice: Employment of People with Disabilities (published in terms of the Employment Equity Act) should be taken into account.[20] It will be interesting to see how the abovementioned affected employees will ‘fit into’ the definition of ‘people with disabilities’, meaning people who have a long-term or recurring physical or mental impairment which substantially limits the prospects of entry into, or advancement in, employment.[21]
Dr Brian van Zyl
[1] The full text of the Directions is available on the SALLR WhatsApp group as well as the SALLR Facebook group
[2] The Directions apply for the duration of the National State of Disaster, unless otherwise indicated
[3] See, further, annexure “C” attached to the Directions
[4] See, inter alia, Regulation 3(1)(b)(ii) and Regulations 3(3)(a) to 3(3)(c) of the Directions
[5] Regulation 3(1)(c) of the Directions
[6] Regulation 4(1)(a) of the Directions
[7] Regulations 4(1)(a)(i) and 4(1)(a)(ii) of the Directions
[8] Regulation 4(1)(c) of the Directions
[9] Regulation 4(1)(i) of the Directions
[10] vaccine.enroll.health.gov.za/#/
[11] Regulation 4(1)(l) of the Directions
[12] Regulation 4(2) of the Directions
[13] Regulation 6(9) of the Directions – an employer may accept a Covid-19 vaccination certificate issued by an official vaccination site in lieu of a medical certificate
[14] The constitutional grounds are the right to bodily integrity in terms of s12(2) and the right to freedom of religion, belief and opinion in terms of s13 of the Constitution
[15] Medical grounds for the contra-indication of vaccination are the following: an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the Covid-19 vaccine (see also https://www.nicd.ac.za/covid-19-vaccine-faq/
[16] Item 5(b) of Annexure C to the Directions
[17] Item 5(c) of Annexure C to the Directions
[18] Item 5(3) of Annexure C to the Directions
[19] Item 5(3) of the Directions
[20] The full text of the Code of Good Practice: Employment of People with Disabilities is available on the SALLR WhatsApp group and the SALLR Facebook page
[21] See, specifically, item 5 of the Code of Good Practice: Employment of People with Disabilities
