Up until the 11th June 2021, there was no law in South Africa which regulated the circumstances under which an employer may compel an employee to receive the Covid-19 vaccine. On this date however, the Minister of Employment and Labour (“the Minister”) published the Amended Consolidated Direction on Occupational Health and Safety Measures in certain workplaces (“the Direction”).
The Direction withdraws the previous Direction issued by the Minister in October 2020 regarding occupational health and safety in the workplace, with the major amendment being, amongst other things, the introduction of employee vaccination in the workplace.
According to clause 3 Risk Assessment and Plans for Protective Measures of the Direction, every employer must, within 21 days of the coming into effect of the amendments in the Direction, undertake a risk assessment as to whether it intends to make vaccination mandatory depending on the employer’s operational requirements and if so, identify employees who must be vaccinated by virtue of the risk of transmission through their work or their risk of severe Covid-19 disease or death due to age or co-morbidities.
Should an employer decide to make the vaccination of certain or all employees mandatory, a vaccination plan must be developed (or amended, where one already exists) to, amongst other things, outline the measures that the employer intends to implement in respect of the vaccination of its employees in accordance with the Direction and/or any applicable collective agreement. In the development and implementation of this plan, the employer is obligated to take into account the constitutional rights of its employees to bodily integrity, the right to freedom of religion, belief and opinion.
The employer must also consult on the risk assessment and plan with any representative trade union as contemplated by section 14(1) of the Labour Relations Act 66 of 1995 (“LRA”) and any health and safety committee established in terms of section 19 of the Occupational Health and Safety Act 85 of 1993 (“OHSA”) or in the absence of such a committee, a health and safety representative designated in terms of section 17(1) of the OHSA or employee representative.
Once the plan has been developed, it must be availed to a representative and an inspector which can include a designated inspector appointed in terms of section 28 of the OHSA for inspection.
The Direction contains guidelines which an employer can follow if it requires employees to be vaccinated and states that a plan that requires employees to be vaccinated in accordance with the national vaccination roll out plan should, subject to any applicable collective agreement, provide for, amongst other things, the following:
- The duty of the employer to inform every employee identified by the employer of the obligation to be vaccinated as and when a vaccine becomes available, the right of refusal by an employee to be vaccinated due to constitutional or medical grounds, the opportunity of an employee, at the employee’s request, to consult a health and safety representative, or a worker representative or trade union official.
- The duty of an employer to provide transport to and from established vaccination sites, if it is reasonably practicable.
- The duty of the employer to grant paid sick leave should the employee suffer side effects and is unable to attend work due to vaccination or to lodge a claim in terms of the Compensation for Occupational Injuries and Diseases Act
Whilst the Direction does afford discretion to the employer to decide whether or not vaccination will be made mandatory for all employees, it equally recognises an employee’s constitutional rights to bodily integrity, freedom and privacy which means that an employer may neither compel an employee to receive vaccination nor may they be dismissed for electing to raise constitutional and/or medical grounds as reasons for refusing to get vaccinated.
The Direction places high importance on the imperatives of public health, the constitutional rights of employees and the efficient operations of the employer’s business and employers are accordingly advised not to misuse the Direction in attempting to compel employees to receive the vaccination where the operational requirements do not so require and/or where the employee has reasonably refused to receive the vaccine.