At face value, requiring unvaccinated employees to produce negative Covid-19 test results regularly, rather than being fully vaccinated, appears to be justifiable as a reasonable accommodation measure to minimise Covid-19 health and safety risks in the workplace, say legal experts at law firm ENSAfrica.
However, the firm noted that this would likely be contingent on several factors, including:
- The efficacy of the test – there are many different tests available the most effective being the PCR test;
- The period of validity of the test; and
- The frequency with which employees are required to produce the test results.
“Accordingly, the frequency and efficacy of the chosen test must achieve the desired purpose of ensuring a healthy and safe work environment as far as reasonably practicable,” ENSAfrica said.
“If an employer only requires employees to test negative every two weeks, this is unlikely to ensure a healthy and safe environment where the employees are in-office every day and in circumstances where a negative test may only be valid for 72 hours.”
The question of whether the production of a negative test is one aspect that an employer must consider when implementing a testing regime. However, the question in most employers’ minds is who will pay?
Seemingly a knee-jerk reaction is to require employees to pay where they have refused the vaccination. It may be more tricky than that, though, ENSAFrica said.
“Of course, where unvaccinated employees are happy to pay for the tests themselves, there is unlikely to be an issue. It may also be possible for employers and unvaccinated employees to agree to a payment plan in terms of which the costs of the tests may be split between the parties,” the law firm said.
“Where discord is created by requiring employees to pay for testing solely, employers should expect legal challenges.”
ENSAfrica said that the Consolidated Direction on Occupational Health and Safety in Certain Workplaces is not specific or prescriptive on the issue of payment for Covid-19 testing. In fact, it deals fairly cursorily with the topic, the firm said.
Instead, the firm pointed to previous case law and whether the cost of testing would be financially onerous for a business.
“If the cost of implementing Covid-19 tests is within an employer’s means, then they would likely be hard-pressed to justify requiring employees to pay for the test.
“If it is the case that it will cause the employer unjustifiable hardship, it might be justified in offering employee-funded testing to the employee as an alternative to dismissal, in circumstances where there are no other reasonable accommodations that can be made,” ENSAfrica said.
Similarly, it might be justifiable that the costs are shared between the employer and employee, the firm said. “Ultimately, employers should guard against too robust of an approach when navigating legitimate objections to vaccinations as it might be seen as punitive.
“The legal framework relating to reasonable accommodation holds employers to a fairly high threshold which ordinarily requires the employers to foot the bill for any accommodation offered.”
- Commentary by Lauren Salt and Jessie Gertzen of law firm ENSAFrica.