Vaccine mandates in South African workplaces – where we are heading

 ·26 Feb 2022

The Commission for Conciliation, Mediation and Arbitration (CCMA) recently presided and ruled over two unfair dismissal cases surrounding the matter of enforceable vaccine mandates in the workplace, says Katherine Timoney, attorney at Gillan and Veldhuizen.

“The findings of the CCMA, which is the first step in all labour-related disputes, could still be challenged by disgruntled parties or even public interest groups via the Labour Court and eventually, possibly the Constitutional Court,” she said.

“However, many questions remain unanswered as the South African workforce both corporate and industrial return to their workplace as restriction levels ease and society returns to pre-Covid working conditions.”

Do all companies need to include a vaccination policy in their employment contract?

Employers’ obligations are governed by the Consolidated Directions in ‘Occupational Health and Safety Measures in Certain Workplaces’, which was published in June 2021.

The legislation requires employers to do a risk assessment on their business to establish whether it would be appropriate for their business to require mandatory vaccinations, and if so, identify which employees must be vaccinated due to their Covid-19 risk profile.

An employee’s risk profile will consider a variety of factors, such as whether employees are regularly dealing with members of the public or if they are particularly vulnerable to Covid-19 due to co-morbidities.

Timoney explains that a vaccine mandate is not required in an employment contract itself, but would be set out in a company-wide policy document which would state as to who must be vaccinated and why, as well as outlining grounds for vaccine exemption.

“Employers must take into account employees’ constitutional rights and act fairly, taking the individual circumstances into account.

“The law requires employers, to accommodate those who choose not to be vaccinated wherever possible by, for example allowing them to work from home or moving them to a less public-facing role.”

Are mandatory vaccinations unconstitutional?

Timoney said the question of constitutionality involves a balancing of rights.

“The rights of the individual employee surrounding freedom of choice, bodily integrity, extending to the rights of the rest of the community, including members of the public, colleagues and anybody else that an employee may come into contact with during the course of his or her daily work.”

She stresses that employers have an obligation to take reasonable steps to provide a safe working environment and to take action based on risk assessments conducted in terms of the directive.

Timoney said that it is also worth noting the comments of Judge Roland Sutherland, Deputy Judge President of the Gauteng Division of the High Court, in a memo to colleagues on the question of vaccinations in the workplace:

“There has been, as yet, only mild protest that this [adopting a no-vaccination-no-entry policy] violates freedom of choice… in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community, then the incontrovertible legitimate interest of the community must trump the preferences of the individual.”

In due course, a court will be asked to give its view on the balancing of these different rights, which will depend on the circumstances of each situation, Timoney said.

Are companies obligated to enforce mandatory vaccination?

Although the CCMA ruled in favour of mandatory vaccinations in these individual matters, citing that it was not unfair to dismiss or suspend an employee who refused to be vaccinated in terms of a mandatory vaccination policy, employers will have to make sure that their policies stand up to scrutiny.

“A blanket mandatory workplace vaccination policy will not suffice without a properly-considered assessment process,” said Timoney.

Employers will need to consider various scenarios such as, as mentioned before, the possibility of remote working for those who do not wish to be vaccinated, or for those working with the public, where vaccination is required. The plan must also allow for applications for exemption on either medical or constitutional grounds.

“No doubt, the matter of mandatory vaccinations is still open for much debate and legal testing, while employers and employees from either poles of the debate wrestle over adopting a suitable policy. It seems, finding an acceptable balance will require risk planning, flexibility and a dose of aspirin.”

Read: Discovery sees positive Covid signs for South Africa on the back of strong results

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