Photo by: David Harrison/M&G
Current legislation allows employers to consider whether an unvaccinated employee can keep their job. According to the Consolidated Direction on Occupational Health and Safety Measure in Certain Workplaces, which was amended in June this year by the Employment and Labour Department, employers have an obligation to undertake a risk assessment regarding whether they intend to make Covid-19 vaccination mandatory.
“We are not working on legislation for mandatory vaccination in the workplace,” said Musa Zondi, the acting communications director for the department of employment and labour.
“The current legislation does not say anything about Covid-19. However, the minister has issued directions or guidelines to be followed, taking into account the Covid-19 pandemic. These are readily available on our website.”
In the risk assessment, employers with more than 50 employees have to assess the risk in terms of the employee’s nature of work and the risk of severe illness or death as a result of Covid-19 in relation to their age and comorbidities.
The employer is also obliged to develop or amend the company’s Covid-19 plans to include mandatory vaccination measures, inform workers about Covid-19 vaccines, help employees register for vaccination, give employees paid time off so they can get vaccinated, and allow employees who experienced side-effects from the vaccination to take sick leave.
When it comes to mandatory vaccination, which was added into the guidelines by the department, the constitutional rights of the employees, public health imperatives and the efficient operation of the business were some of the interests that employers should consider when enforcing mandatory vaccination in the workplace.
MP and labour spokesperson for the Democratic Alliance, Michael Bagraims, stressed that the vaccination of employees was not mandatory and all citizens were protected by the Constitution.
“South Africa does not have mandatory vaccination. The Constitution protects every single individual, and allows each individual bodily integrity. Furthermore, President [Cyril] Ramaphosa has, on no less than three occasions, announced the above mentioned fact on national television. Nobody can be forced to have a vaccination,” said Bagraims.
But there have been instances where, Bagraims says, a dispute arose because employees refused to get vaccinated against Covid-19 and employers dismissed them for failing to oblige with their operational requirements.
Although there are no judgments regarding Covid-19 vaccinations in the workplace, Bagraims cautioned that there would soon be legal challenges.
“We recently had a situation where a senior buyer of a retail operation had to travel to fulfil her work. She decided, for no good reason, she was not going to be vaccinated and she could not travel abroad. The company was then obliged to dismiss her for operational requirements.”
“In another situation, a client factory sent all 14 staff to be vaccinated and two decided at the last minute not to take the vaccination. The others then said they refused to work with the two who were unvaccinated. This led to a situation where the employer had to ask the two to leave,” Bagraims elaborated.
Zondi said that in the regulations, dismissal was the last resort that an employer could take after having considered other alternatives such as modifying the work environment. Some of these adjustments included allowing employees to work off-site, work from home, work in isolation from other employees, work outside normal hours and work with a mask on.
He said this move by employers to demand for their employees to get vaccinated should be done in an amicable way, adding that it was not up to the department to dictate what could work for different employers.
“It depends on the industry and the reasons advanced for the need to vaccinate. As a department, we recognise that there are companies that will make vaccination compulsory for their operational and rational reasons. What the minister has said is that companies or organisations should work through established collective bargaining structures and agreements to negotiate the best way forward for that particular establishment. The department is not in the position to dictate what works for whom but to encourage constructive negotiations,” he said.
These considerations, as stated by the department, included the size and nature of the business, provisions for collective agreement as well as the health of others, and these include other employees that work with the business.
For employees who refused to get vaccinated for constitutional or medical reasons, the employer could either counsel the employee or allow them to seek guidance from a health and safety representative or trade union.
Employees could also be required to prove that they had valid medical reasons for refusing to be vaccinated, and this included going for a medical evaluation to prove that vaccines could harm them. Employers could also choose to accommodate an employee who refused to get vaccinated in a position that does not require the employee to get vaccinated.
“No one should be forced to vaccinate. Especially when people have religious or other constitutionally protected reasons for not vaccinating. The department has urged that an arrangement is made whereby those employees can be accommodated in such a way that they are not a danger or exposed. They could work from home or they could be assigned in an isolated area where they can continue working with masks on or other protective gear,” Zondi said.
“Dismissal in general should always be the last option if really no middle ground can be found or no workable solution is possible. But obviously that has its implications including but not limited to litigation and the like. That is why the department urges collective bargaining negotiations that would work for both the employer and employee.”
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