No vaccines? No job?

By the end of July 2021, South Africa managed to vaccinate over 2.8 million people.  This accounts for a mere 4,8% of the country’s population. Apart from first responders, the number drops even lower when it is related to those who form part of the general workforce. As Covid-19 continues to reign havoc on the economy the Department of Employment and Labour has seen the need to amend the Occupational Health and Safety Directions to aid businesses in establishing workplace appropriate Risk Assessment and where necessary Vaccination Policies.

The Directions from the Department of Labour were published in the Government Gazette on 11 June 2021. A copy of the Direction can be accessed at https://legalbrief.co.za/media/filestore/2021/06/44700_11-06_NationalRegulation-1-2_covid.pdf

These Directions apply directly to all employers that are operational in South Africa and therefore all employers are expected to make provision for Risk Assessments. Employers were required to within twenty-one (21) days after 11 June 2021, when the Directions came into effect, complete a risk assessment that will give such an employer insight into whether their staff would have to undergo mandatory vaccinations based on operational requirements. Therefore, employers should have done such a risk assessment by 2July 2021.

When employers have completed their risk assessments and analysed their workplace, these employers may make vaccines mandatory. Although operational requirements are not elaborated on in the published Directions there is an inference that the risk assessment is a consideration made around the risk of infection in completing day-to-day workplace tasks. These risks could be established by looking into whether there is adequate social distancing, whether the employees can work staggered working hours, whether rotations and shifts for working hours can be established,  whether employees can work remotely, the individual risk of severe illness due to comorbidities or age, the availability of personal protective equipment, the occurrence of Covid-19 in the workplace, education into cough and sneeze etiquette and the effectiveness of screening tools. Such a risk assessment does not have to be done on all employees however it is a necessity to establish and evaluate the employees that form part of the vulnerable group.

Upon the completion of such a risk assessment, an employer is required to identify the employees who may be more vulnerable and outline that vaccination is mandatory for these employees. The policy must consist of the reasons as to why the vaccine is necessary for the group of employees identified. This means that an employer must outline that an evident risk for contraction of the Covid-19 virus exists and that these employees could be subjected to severe illness or even death if their exposure to the disease is not pre-empted.

In the event that an employer does not make vaccinations mandatory such an employer has the duty to furnish an anticipated outcome to their risk approach. An employer does not need to integrate a vaccination policy however clear objectives should be reached from the outset when choosing a risk plan. If chosen, the vaccination policy must highlight what the employer will put in place to curb the spread of the virus in the workplace and if vaccination is going to be compulsory the employer must provide a descriptive program that provides insight into how the vaccination policy would be administered effectively.

Employers who administer vaccination programs have the duty to:

  • Make employees that are at risk, aware of the need for them to become vaccinated, although the Directions do not explicitly burden the employer with paying for the vaccine it would still be within the reasonable duty to provide aid to the employee’s regarding registration for the vaccine.
  • Educate employee’s on their right to refuse the vaccination although they occupy high-risk status. The refusal of the vaccine is a Constitutional right and it could also be based on medical information. The employer then must provide counselling to the employee and where it is needed, provide aid regarding measures that do not include vaccination.
  • Make the employee’s aware of their right to take counsel from a health and safety worker, worker representative or their union regarding the vaccination policies.  
  • Make provisions for employees to go to vaccination sites, such as the provision of transportation.
  • Give employee’s time off in the event an employee suffers side effects from the vaccination.

The role of the employer in this instance is that of facilitator to ensure that all employee’s in their care do their best to protect themselves. The Directions reiterate the Constitutional right to refusal and the need for reasonable assistance that does not consist of vaccination. It is essential for employers to do a Risk Assessment to ensure they are complaint with the Disaster Management Act’s Regulations and take up their duty to fight the spread of the Covid-19 virus in the workplace.