While much of the focus on vaccine mandates in South Africa has focused on corporates and large businesses, many South Africans have raised questions about whether they can introduce mandatory vaccinations for domestic workers, gardeners and other employees in their homes.
Talita Laubscher, a partner at legal firm Bowmans, says domestic workers and gardeners at private households are still ’employees’.
“As such, they are protected against unfair dismissal and are entitled to the minimum terms and conditions of employment as set out in the applicable Sectoral Determination, issued in terms of the Basic Conditions of Employment Act,” she said.
“They too, have the right to a safe work environment, and their employers have the obligation to ensure a healthy and safe workplace.”
As is the case with all other categories of employees, domestic workers and gardeners also have a legal obligation to ensure safety where they work, said Laubscher.
“And they have the right not to be unfairly discriminated against on the grounds listed in section 6(1) of the Employment Equity Act. These grounds include, for example, disability, religion, conscience and belief.”
What the general rules say
Laubscher said that all the normal rules regarding vaccine requirements would accordingly apply to domestic workers, including:
- Assessment: In terms of the Occupational Health and Safety Direction, employers must assess the risk of Covid-19 transmission in the workplace.
- Vulnerable employees: The direction recognises that certain categories of employees, such as vulnerable employees, may be required to get vaccinated. Vulnerable employees are those who are older than 60, and those who have recognised comorbidities, such as diabetes.
- Greater risk: The direction further recognises that an employer may require employees, who through their work may be at higher risk of transmission of Covid-19, may be required to get the vaccine.
- Objections: Employees may object to getting the vaccine on medical grounds. Accordingly, if an employee suffers from an illness or allergy that is contra-indicated, the employee would be permitted to object to the vaccine requirement. So may employees who rely on genuine “constitutional grounds”, such as religion or belief.
- Alternatives: Where there are genuine objections, the employer must take steps to reasonably accommodate the employee. The obligation to accommodate the employee is not absolute, and where the steps or efforts that would be required in order to accommodate the employee would result in unjustifiable hardship for the employer, the employer will not be required to accommodate the employee. Where there are no genuine grounds for objection, the employer also does not have an obligation to accommodate the employee.
- Vaccination status: Information pertaining to an employee’s vaccination status constitutes health information and in terms of the Protection of Personal Information such information may only be processed with the individual’s informed consent, or where the processing is necessary for compliance with a right or an obligation in law. Where the employer introduces a rule, in line with the Occupational Health and Safety Act and Direction, that employees should be vaccinated, they may require proof of vaccination on the basis that they require it to ensure compliance with their legal obligations.
Specific considerations for domestic workers
Turning to the specific issues of domestic workers and gardeners:
- At risk: If the domestic worker/gardener is over 60 or suffers from a co-morbidity, the employer may require the employee to get vaccinated and to provide proof to this effect.
- Work considerations: If the domestic worker/gardener is below 60 and does not suffer from a co-morbidity, they may be required to get vaccinated if, through their work, there is a risk of transmission of Covid-19. This may particularly be the case with domestic workers, who work in close proximity of the members of the employer’s household, touch objects in the house and prepare food. In these circumstances, observing 1.5 meters from other members of the household is not always practicable, and it is not always possible to wear sufficient PPE to minimise the risk of transmission.
- Gardeners: Employees who work in the garden and may have more limited contact with the members of the household, the position may be different. However, if there is regular contact, and if the equipment is not used only by the gardener and it is not possible to sanitise and clean the equipment on each occasion, then there may well be an increased risk of transmission.
- Public transport: In respect of both domestic workers and gardeners who make use of public transport to reach their places of work, there may also be an increased risk of transmission. It is accordingly conceivable that employers of domestic workers and gardeners might require these employees to get the vaccine, and if they are vulnerable employees or at risk of transmission of the virus, such a requirement would be justifiable.
- Objections: Of course, if the employee has a genuine medical or other objection, the employer would need to explore ways in which to accommodate the employee.
- Alternatives: The options of a reasonable accommodation might be much more limited in the household than in an office environment. Domestic workers must work at the home – they cannot work remotely. The only alternative might therefore be additional PPE, but this may not be practical or affordable in the specific circumstances.
- Dismissal: If the employee cannot be reasonably accommodated, the employer may then consider dismissal. The basis for the dismissal is likely to be the employee’s incapacity to comply with the employer’s health and safety rule. The dismissal must be procedurally fair, and the employer will accordingly be required to engage with the employee before a decision is taken to dismiss.
The steps to take
Before introducing mandatory vaccinations in the household, an employer would need to discuss the following with the domestic worker/gardener, and solicit and consider the employee’s representations:
- The rule that the employee will need to be vaccinated.
- The reason for the rule, namely that it provides a measure of safety that is not possible or as effective through other PPE. What would be relevant in this regard would also be the situation of the members of the household – they might be elderly; they might have co-morbidities; there may be children who are immune-compromised.
- The time when the employee will be required to be vaccinated and provide proof.
- If the employee objects, the reasons for the objection; an assessment of the veracity of the objection; and whether it is possible to reasonably accommodate the employee.
- If it is not possible to reasonably accommodate the employee (without causing the employer unjustified hardship), the employer would be entitled to issue a notice of termination. The employee would need to be paid her/his accrued annual leave and notice pay in lieu of notice if the employee is not required to work during the notice period.