On the 11th of June 2021 the Department of Employment and Labour published an Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“the Direction“) issued in terms of certain regulations under the Disaster Management Act 2002. The Direction effectively introduced the Department of Employment and Labour’s view on whether or not an employer may implement a mandatory vaccination policy.
The Direction provides that an employer must conduct a risk assessment within 21 days of the Direction coming into effect. The risk assessment must, amongst others, stipulate whether the employer intends on introducing mandatory vaccinations in the workplace. The risk assessment should be conducted as soon as is possible if not done within the timeframe stipulated. The Direction does not state that an employer will forfeit the opportunity to implement mandatory vaccination if the risk assessment is not done within the timeframe.
As part of the risk assessment, the employer should identify those employees who are at risk of transmission of Covid 19 as a result of their work environment and those employees who are at risk of severe Covid 19 due to their age or comorbidities. The employer’s operational requirements must be critically assessed to establish whether mandatory vaccination is justified.
Thereafter, a workplace plan must be developed outlining the steps the employer will take to implement, amongst others, mandatory vaccination in the workplace.
The risk assessment and workplace plan must be consulted on with any representative trade union and health and safety committee/representative in the workplace.
Once the decision to implement mandatory vaccination has been settled on, the drafting of a mandatory vaccination policy should commence as this is the document through which the employees will be introduced to the concept and it should detail each parties’ respective rights and responsibilities.
Employees must be notified of the decision to implement a mandatory vaccination policy and amongst others, their right to object to being vaccinated.
An employee can object to being vaccinated based on two grounds:
- Constitutional grounds which (in terms of the Direction) consist of the right to bodily integrity and the right to freedom of religion, belief and opinion; and
- Medical grounds which (in terms of the Direction) could be an immediate allergic reaction of any severity to a previous dose or a diagnosed allergy to a component of the Covid 19 vaccine.
The objection will, after consideration by the employer, either be accepted or rejected whereafter the employer will endeavour to provide the employee with reasonable accommodation which should as far as is reasonably possible, aim to ensure the continuation of the employment relationship. Reasonable accommodation might include permitting the employee to work offsite or at home or in isolation. The employer must apply and be guided by the Code of Good Practice: Employment of People with Disabilities when applying the requirement of reasonably accommodating an employee.
The Direction unfortunately does not provide more information or guidance on the applicable process to terminate employment where an employee cannot be reasonably accommodated.
In terms of the Labour Relations Act, an employment relationship may be terminated for misconduct, incapacity or operational requirements.
Considering the Direction states that the Code of Good Practice: Employment of People with Disabilities is applicable to the process of implementing a mandatory vaccination policy and the Direction sets out a procedure of accommodation on the event of an objection, it leads one to assume that the requirements for dismissals based on incapacity should be the applied process when no reasonable accommodation is possible.
It is important to note that the fairness of a dismissal based on the refusal to be vaccinated (assuming the process as detailed in the Direction is applied) has not yet been tested by any of our dispute resolution forums. Considering mandatory vaccinations are unchartered territory, an employer will be well advised to approach the implementation of mandatory vaccinations with due regard to the Direction.
