BCHC: Mandatory vaccination in the workplace is subject to certain requirements

On 11 June 2021 the Department of Employment and Labour published an Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces with guidelines for both employers and employees relating to, amongst other things, social distancing, symptom screening, wearing of cloth masks and the importance of ventilation in the workplace.

While these guidelines remain largely unchanged from the Direction published on 1 October 2020, the amended Direction now also specifically deals with the vaccination of employees in the workplace.

Section 3(1)(a)(ii) of the Direction provides that every employer must undertake a risk assessment within 21 days of the coming into force of the Direction (being by 2 July 2021).

The risk assessment must stipulate, amongst other things, whether the employer intends making the Covid-19 vaccination mandatory for its employees. If so, the employer should identify those employees who must be vaccinated due to the risk of transmission through the nature of their work or their risk to contract Covid-19 due to their age or comorbidities.

Employers must then develop a plan or amend their existing workplace plan which outlines the measures that they intend to implement relating to the vaccination of their employees.

Annexure C to the Direction provides guidelines of what should be included in the plan relating to vaccination, such as:

• every employee identified for mandatory vaccination should be informed of the obligation to be vaccinated when the vaccine becomes available for that employee (obviously employees cannot be expected to be vaccinated if they are not eligible yet); the right to refuse vaccination on constitutional or medical grounds; and the opportunity to consult a health and safety representative, worker representative or trade union official;
• employers should provide transport for employees to vaccination sites;
• employers should give employees who are unable to work due to side effects from the vaccine paid time off to recover if those employees are no longer entitled to sick leave or assist those employees in lodging a COIDA claim.

The Direction makes it clear that when developing and implementing such a plan, that employers must consider the employee’s rights to bodily integrity as well as their right to freedom of religion, belief and opinion.

Employers should inform employees that it takes its obligations seriously to ensure a safe working environment as far as reasonably possible as required in terms of the Occupational Health and Safety Act, 85 of 1993 and that requiring employees to be vaccinated forms part of this obligation. The employers should then refer the employees to that workplace’s specific workplace plan.

Annexure C to the Direction explains that if an employee refuses to be vaccinated notwithstanding it being a mandatory requirement for that employee in terms of the specific employer’s workplace plan, the employer would have to consult with the employee in question who may raise religious or medical reasons for their refusal to be vaccinated. If an employee refuses to be vaccinated on any constitutional or medical ground, the employer should counsel the employee and if requested, allow the employee to seek guidance and refer the employee for further medical evaluation should there be a possible medical contraindication from the vaccine. Annexure C also places an obligation on employers to take steps to reasonably accommodate the employees in positions that do not require them to be vaccinated, for instance, that they may continue working from home, offsite, in isolation in the workplace (i.e., in a separate office), outside of ordinary working hours or whilst wearing a N95 mask. [1]

Each objection will have to be assessed on its own merits and consistency in how an employer deals with employees who refuse to be vaccinated is key. Given that there is no case law on this issue yet, employers should be very careful in the approach that they choose to follow.

In addition, certain practical issues are dealt with in the Direction, such as:

• Section 4(1)(i) of the Direction provides, amongst other things, that employers must provide workers with information raising awareness on “the nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccination and the nature and risk of any serious side effects such as severe allergic reactions.” This information can be obtained from https://www.nicd.ac.za/covid-19-vaccine-faq/.
• Section 4(1)(k) of the Direction states that employers must give administrative support to assist its employees to register on the Electronic Vaccine Data System Registration Portal. The portal can be accessed at https://vaccine.enroll.health.gov.za/#/. This step should also be included in employers’ workplace plans.
• Section 4(1)(l) of the Direction explains that employers must provide employees with paid time off to be vaccinated. An employee must provide proof of the vaccination time and date.
• Sections 6(8) and 6(9) of the Direction provides that employees may present with symptoms between one and three days after vaccination and that those employees are not necessarily prohibited from entering the workplace as would be the case with employees who are not vaccinated. If employees are unable to attend work due to side effects from the vaccination, they must be allowed to take paid sick leave. An employer may accept a vaccination certificate issued by an official vaccination site instead of a medical certificate.

Employers who have not already done so must therefore conduct a risk assessment and develop or amend their existing workplace plans to now determine whether Covid-19 vaccination is mandatory in that employer’s specific workplace and how vaccination and objections to vaccination will be dealt with, in line with the requirements as per the Direction.

[1] Section 5(3) of Annexure C explains that “reasonable accommodation means any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant provisions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act, 1999 (Act No. 97 of 1999).”