Is vaccination in the workplace compulsory?
Employers have until 2 July to update their Workplace Plan with regards to mandatory vaccinations.
For most, that would seem to be a plot in a science fiction movie, especially in South Africa, which for all intents and purposes is a poster child country with extensive human rights enshrined by our Constitution. Surely no one can force someone to get the COVID-19 vaccination, especially when the President himself left the decision to its citizens?
Directive from Government
An updated Consolidated Direction on Occupational Health and Safety was released by the Department of Employment and Labour on the 11th of June 2021 and it makes the possibility of vaccinations being compulsory in the workplace more of a reality than previously expected. This is a hot topic at the moment, effectively employers have been put on terms to perform extensive assessments and update their Workplace Plan to incorporate key issues surrounding vaccinations by the 2nd of July 2021. In essence, employers need to determine whether they will be making vaccinations mandatory in the workplace, subject to assessing the risks involved in accordance with the Government guidelines set out in the Direction.
Let us take a closer look at the key things that need to be taken into consideration by the employer.
Employer Considerations on mandatory vaccination
Firstly, it is imperative that any mandatory policy forced upon employees achieves a balance of the employee’s constitutional right and the employer’s rights to efficient operation in its business. If the company requires mandatory vaccination in terms of its operational requirements, there are certain steps to follow:
- Identify the 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.
- Ensure any existing collective agreements in the workplace are adhered to, as the guidelines do not supersede the collective agreement.
- Have a plan in place in case employees refuse to have the vaccine in line with their Constitutional Rights, which includes right to integrity, freedom of religion, belief and opinion, or if they have medical grounds to refuse. This plan, for example, can either allow the staff member to work off site, providing the staff member with an office where they can isolate from the other staff or ask the staff member to wear a medically approved mask instead of a cloth one. You can alter the staff member’s working hours, to ensure the employee is at work when the rest of the staff are not there. Alternatively move the employee to a less risky position.
Once a formal vaccine policy is in place, then the employer must notify each employee of the requirements of the Company. Employees that need to be vaccinated should be informed of the following:
- The obligation to be vaccinated
- The right to refuse to be vaccinated (i.e. constitutional rights/medical grounds)
- The opportunity to consult their doctor, health and safety representative at the company or trade union official
- Whether the company will supply transportation when being vaccinated
- The right to take annual leave should the employee suffer side effects of the vaccine (and they perhaps have insufficient sick leave). Alternatively, they can claim compensation under the Compensation for Occupational Injuries and Diseases Act, 1993.
In the case of a mandatory vaccine policy, ultimately the merits need to be closely looked at both by the employee as well as the employer. Companies cannot adopt a blanket approach. The employer’s decision to make such policy mandatory needs to be reasonable. Similarly, there has to be rational thought behind an employee refusing to be vaccinated.
Essentially, the guidelines ask that employers and employees need to balance the competing rights that each of them has in order to ensure that all interests are balanced, and rights are protected.
Contact Tania Abbotts at Hammond Pole Attorneys if you need labour assistance.
011 874 1800 / TAbbotts@hammondpole.co.za