1. Introduction

Implementing mandatory vaccination is not straightforward. Employers are obliged to do a risk assessment, to identify employees who must be vaccinated, and to develop a vaccination plan and appropriate measures to implement the plan.

Employers may also have employees who refuse to be vaccinated on constitutional grounds (e.g., right to bodily integrity, and freedom of religion, belief or opinion).

The obligations of employers regarding COVID-19 and vaccination are contained in a new set of ‘Consolidated Direction on Occupational Health and Safety Measure in Certain Workplaces’ were gazetted on 11 June 2021 – this Direction is available at https://labourwise.co.za/downloads/topical-temporary-download.

2. General vaccination obligations

With the vaccination roll-out well underway, there are several obligations that apply to all employers, irrespective of whether or not they intend to make vaccination mandatory. These general obligations are discussed in a separate article – see https://labourwise.co.za/labour-articles/vaccination-and-employment. In this article we shall focus only on mandatory vaccination.

3. Mandatory vaccination

3.1 On what basis may vaccinations be made mandatory?

The Occupational Health and Safety Act of 1993 lays the basis for health and safety in any workplace. According to the Act employers have an obligation to take reasonable measures to ensure that the working environment is safe and without risk to the health of its employees. The employer’s obligation to take reasonable measures is also extended to non-employees who may be affected by its activities, e.g., through employees interacting with members of the public.

It is against this background that the latest Consolidated Direction provides a framework for mandatory vaccination in the workplace.

The reasons for making vaccination mandatory can vary widely. Sometimes the reasons can be justified, sometimes not.

Consider the following scenarios:

• Scenario A: A forestry worker who works mainly from home, but does daily assignments in the field where he seldom encounters anyone (Mandatory vaccination may not be justified).
• Scenario B: A health worker who is exposed to many people on a daily basis, often the elderly or others who are at risk of severe Covid-19 disease or death because of their age or comorbidities (Mandatory vaccination may be justified).

The above-mentioned scenarios are at the extreme ends of the spectrum and have been mentioned for illustrative purposes. Most employer will find themselves somewhere in between. There may be cases where employers decide to make vaccination mandatory for only for certain employees due to the nature of their work.

Mandatory vaccination is likely to be justified in situations where employees work in close proximity to each other or are exposed to the public, for example:

• Sales staff or waiters in restaurants who are in regular contact with customers; or
• Employees that have close contact with other employees, for example in certain factory environments where it is inevitable that employees work in close proximity to each other and share facilities; or
• Domestic workers who are responsible for taking care of the sick and elderly; or
• Employees who need to travel to foreign destinations that have strict vaccination requirements.

In the following paragraph we give a broad outline of the factors that could affect a decision on whether vaccination should be made mandatory.

3.2 Considerations for mandatory vaccination

Annexure C of the Consolidated Directions provides certain guidelines (they are stated generally and make allowance for departures if justified by the circumstances). There could be several other factors, not mentioned in the guidelines, that may affect the employer’s decision to a greater or lesser extent. Relevant considerations include –

(a) The size and nature of the business;
(b) The provisions of collective agreements (only where applicable);
(c) Different interests (that may be in conflict with each other), namely –

(i) public health imperatives ;
(ii) the constitutional rights of employees (i.e., the right to bodily integrity, as well as freedom of religion and opinion); and
(iii) the efficient operation of the employer’s business;

(d) The health of others (employees and non-employees) that employees engage with in the course of their employment.

3.3 Risk Assessment and Vaccination Plan

According to the Directions, employers who intend to introduce mandatory vaccinations must –

(a) Undertake a risk assessment and identify employees who work in situations where –

(i) The risk of transmission is high due to the nature of employees’ work; and
(ii) The risk for severe COVID-19 disease or death is high due to an employee’s age or comorbidities ;

(b) Develop or amend their existing COVID-19 vaccination plan to include measures spelt out in the Guidelines for mandatory vaccination (Annexure C of the Consolidated Directions). The content of the plan must take account of the size and nature of the business, as well as any collective agreement (if applicable);

3.4 Contents of Vaccination Plan

The Vaccination Plan would be based largely on the risks that have been identified in the Risk Assessment. According to the Direction, the Mandatory Vaccination Plan (applicable to employers that have 10 or more employees) must –

(a) Include the identification of the employees referred to in the Risk Assessment;
(b) Include the process by which the obligations in terms of the Direction are going to be complied with;
(c) Take into account any collective agreement regarding mandatory vaccination (if applicable);
(d) Take account of the accessibility of COVID-19 vaccines for the affected employees;
(e) Take into account an employee’s constitutional right to bodily integrity, as well as the freedom of religion, belief and opinion;
(f) Provide for notification of every employee identified for mandatory vaccination of –

• The obligation to be vaccinated and by what date;
• The right to refuse to be vaccinated on constitutional or medical grounds; and
• The opportunity to consult with a health and safety representative, worker representative or trade union official.

(g) Transport to and from the vaccination site, if reasonably practicable;
(h) If the employee suffers side effects as a result of the vaccination, the employee should be given paid time off to recover. (To understand what type of leave should be given, see our article on ‘Vaccination and sick leave’ at https://labourwise.co.za/labour-articles/vaccination-and-sick-leave).)

It would be advisable for the plan to also indicate –

(a) where employees may obtain information about Covid-19 vaccines (For example the NIOH – see https://www.nicd.ac.za/what-you-need-to-know-about-vaccines-in-general/); and
(b) whom employees may approach for assistance to register for vaccination.

 3.5 Have you missed the deadline ?

Employers who intended to make vaccination mandatory had until 2 July 2021 (i.e., 21 days after the amended Direction came into force on 11 June 2021) to undertake a risk assessment and to identify employees that would be vaccinated.

It is not clear why there had to be a deadline. It is also not clear what the consequences would be if an employer failed meet the deadline and how that might affect its ability to fairly terminate the services of an employee who refuses to be vaccinated. However, assuming that an employer has complied with the Direction, what may an employer do if an employee refuses to be vaccinated?

3.6 Refusal to be vaccinated

If an employee refuses to be vaccinated on any constitutional ground (i.e., freedom of religion, belief or opinion) or medical ground (e.g., possible risk to the employee’s health due to the side effects from taking the vaccine), the employer should –

(a) Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;

(b) Refer the employee for further medical evaluation should there be any contra-indication for vaccination (i.e., if the employee has a condition that, if vaccinated, could cause the employee harm); and

(c) If necessary (i.e., if the employer has concluded that it is necessary for employees in the workplace to be vaccinated based on the particular circumstances), reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

The most controversial issue in relation to mandatory vaccination appears to be the extent to which employees may rely on their constitutional rights not to be vaccinated, in particular freedom of religion, belief or opinion.

Constitutional rights are not absolute, though. In some cases, these rights clearly need to yield to the rights of others (e.g., scenario B mentioned in paragraph 3.1 above). As mentioned before, an employer has a legal obligation to ensure the health and safety of its employees, as well as members of the public with whom its employees interact.

3.7 Dismissal for refusing to be vaccinated?

Dismissal for refusal to be vaccinated must be a measure of last resort. The employer should therefore explore alternatives. Annexure C to the Direction suggests a modification or adjustment to the job or work environment, including –

(a) Working off-site ;
(b) Working from home ;
(c) Working in isolation (at the workplace);
(d) Working outside normal working hours ; and
(e) Working while wearing a N95 mask.

If none of the aforegoing measures are viable, the employer may consider excluding the employee from the workplace on a ‘no work, no pay’ basis until such time as it is safe enough for the employee to return to work.

If the employer contemplates dismissal because of the need to replace an employee who refuses to be vaccinated, we would advise against taking disciplinary action. Depending on the circumstances, it would be more appropriate to deal with such matter as one of operational requirements or incapacity (more likely the latter).

It follows that one would have to adhere to applicable pre-dismissal procedures, irrespective of the size and nature of the employer’s business.

4. Conclusion

Although mandatory Covid-19 vaccination in the workplace may be justified in certain circumstances, it remains a highly controversial and emotive matter. Employers have to undertake a thorough risk assessment before implementing a mandatory vaccination policy.

The services of employees who refuse to be vaccinated may be terminated in certain circumstances, but not before the employer has attempted to reasonably accommodate such employees. The pre-dismissal considerations that apply in the case of mandatory vaccinations appear to be significantly more onerous than the considerations that apply in most other situations where the termination of employment is contemplated.

by Jan Truter for www.labourwise.co.za

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