The Department of Employment and Labour has issued an updated occupational health and safety directive which, among other things, expressly permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines.
Whether employers can or can’t force employees to have the Covid-19 vaccination has, up until now, been widely debated, says law firm Cliffe Dekker Hofmeyr.
“While this latest directive clarifies the matter, it cautions employers that when implementing a mandatory workplace vaccination policy, the rights of employees to bodily integrity and religious freedoms and beliefs must be taken into account,” it said.
The firm’s employment practice has now developed detailed guidelines for employers and employees regarding the new directive and creating a vaccination policy.
Within 21 days of the Directive coming into force an employer must amend their workplace plan to include the following:
- Whether they intend to make vaccinations mandatory;
- The category of employees that must be vaccinated;
- The manner in which it will adhere to the directive;
- The measures it will take to implement the vaccination of employees as and when vaccines become available;
- Provide employees with paid time off to be vaccinated, provided an employee shows proof of vaccination.
An employer must consult with the relevant trade union on the mandatory vaccination policy together with any health and safety committee established in terms of the Occupational Health and Safety Act.
The policy must also be made available for inspection by trade unions, the health and safety committee as well as an inspector.
Factors to consider when determining mandatory vaccinations include:
- Risk of transmission due to the job role
- Any collective agreement in place on the subject.
An employer must raise awareness among employees with regards to, among others, the nature, benefits and risks associated with the vaccines.
The objectives of these guidelines should be:
- The guidelines are not to supersede or undermine any collective agreement on the subject.
- The guidelines are general and broad in nature and deviation may be required based on the specific workplace;
- The guidelines are based on mutual respect and striking a balance between public health imperatives, the constitutional rights of employees and the efficient operation of the employers business.
A mandatory vaccination policy must include the following:
- Notice to employees that they must be vaccinated as and when vaccines become available.
- A right to refuse vaccination on constitutional or medical grounds.
- The opportunity for an employee to consult with a trade union representative, a worker representative or a representative of the health and safety committee
- Where reasonably practically possible, provide transport to vaccination sites.
- Allow an employee sick leave or paid time off should they suffer side effects after having received the vaccine, alternatively make a claim on behalf of the employee in terms of the Compensation for Occupational Injuries and Diseases Act..
Where an employee refuses to be vaccinated on medical or constitutional grounds, an employer should:
- Counsel an employee and allow them to confer with a trade union representative, a worker representative or a member of the health and safety committee.
- Refer the employee for further medical evaluation where the objection is on medical grounds. This will however require the consent of the employee.
- If necessary, take steps to reasonably accommodate the employee by making amendments to their role or work environment in one or more of the following ways: allow them to work from home where possible, require that they self-isolate in the workplace; or require the employee to wear an N95 mask while in the workplace.