In mid-February 2021, government began rolling out the much-anticipated phased Covid-19 vaccine strategy, which prioritises those most vulnerable to infection and/or health complications if infected.
The vaccine is being rolled out in three phases:
- Phase 1: The country’s estimated 1.2 million frontline healthcare workers.
- Phase 2: Essential workers, persons in congregate settings, persons over 60-years and persons over 18-years with co-morbidities.
- Phase 3: The remaining 22 million members of the population over the age of 18-years.
While progress is being made in the rollout, given the limited availability of the vaccines and the delay in securing sufficient doses for the entire population, it may be months before government reaches phase 2 of its strategy, says legal firm ENSAfrica.
In his speech on 28 February 2021, president Cyril Ramaphosa indicated that phase 2 of the rollout is estimated to begin in late April or early May.
ENSAfrica said that this raises some important questions regarding vulnerable workers – especially the obligations before and after vaccines are made more widely available.
Before and during the Phase 2 rollout
In terms of the regulations issued under section 27(2) of the Disaster Management Act 2002, a vulnerable employee is one with a known or disclosed health issue, co-morbidity or other health condition that may place the employee at a higher risk of complications or death if infected with Covid-19, or an employee over the age of 60.
“The regulations have consistently required employers to show due regard to the increased risks faced by vulnerable employees and to accommodate them where possible,” said ENSAfrica.
“The regulations require employers to take special measures to mitigate the risk of vulnerable employees being infected at work, or if this is not possible, to equip vulnerable employees to work from home.”
At least until vaccines are rolled out to vulnerable workers, employers should continue to take extra precautions where reasonably practicable to protect vulnerable workers, the firm said.
This may involve taking steps to limit the employee’s exposure to Covid-19, for example:
- Temporarily placing the employee in a role which has a lowered risk of transmission, eg, if the employee’s job involves frequent interaction with the public, re-assigning them to a role with less interaction;
- Not requiring the employee to perform high-risk aspects of the job eg, travel for business purposes;
- Providing the employee with a dedicated office;
- Providing alternative transport for the employee, eg, if the employee typically uses public transport, arranging alternative private transport;
- Permitting the employee to work from home.
“This list is not exhaustive, and employers should carefully consider the individual needs and circumstances of its business and vulnerable employees,” said ENSAfrica.
It added that taking appropriate measures in respect of vulnerable employees will ensure that the employer is complying with its obligations under the Covid-19 regulations.
“Employers should bear in mind that a failure to comply with these obligations may attract a penalty under the Occupational Health and Safety Act.”
After phase 2
ENSAfrica said that vaccination of vulnerable employees may not absolve employers of these additional obligations in respect of vulnerable workers.
“The National Institute for Communicable Diseases has advised that at present, it is unclear whether the Covid-19 vaccines will provide long-term protection against the virus (ie, protection from reinfection) and that more research is required in this regard.
“Furthermore, it is unclear how the vaccine will impact the Covid-19 pandemic.”
Whether the pandemic will continue beyond the rollout of vaccines depends on various factors, including the effectiveness of the vaccines; how quickly they are approved, manufactured, and delivered; and how many individuals are vaccinated.
This means that while the roll-out of vaccines brings hope that the end of the Covid-19 pandemic is in sight, at present, it is unclear what the effect of the vaccines will be, ENSAfrica said.
“In the meantime, employers are urged to continue complying with all Directives and Regulations, particularly in respect of vulnerable workers.
“Even if or when vulnerable workers are eventually vaccinated, employers should remember that it is uncertain whether the vaccine will protect vulnerable people in the long-term.
“Accordingly, in the absence of new scientific research on the topic or any laws or regulations to the contrary, employers may need to continue taking extra precautions to protect vulnerable employees.”
ENSAfrica said that even if the vaccines are proven to protect against Covid-19 in the long term, employers are reminded that they may encounter legal hurdles should they try to compel employees to be vaccinated, and should be careful not to unfairly discriminate or dismiss on the basis of an employee’s vaccination status.
Commentary by Dalene Moodley (candidate legal practitioner), Peter le Roux (executive consultant) and Lauren Salt (executive) of ENSafrica’s Employment department.