The Ministry of Employment and Labor introduced the Consolidated Directorate on Health and Safety in certain workplaces on June 11, 2021. Indeed, it allows employers to introduce a compulsory vaccination policy provided certain conditions are met. are met.
Old Mutual recently joined the growing list of large companies – which include Discovery, Life Healthcare, Curro, Old Mutual, MTN, various universities, and Sanlam – that intend to implement mandatory workplace vaccinations starting. January 2022.
It seems that many employers are considering this option in light of the low vaccination rate among the South African population and the fact that if the majority of the population is vaccinated, the economy can start with the recovery process.
Jacqui Reed, employment lawyer and senior partner at law firm Herbert Smith Freehills, provided a basic guideline that employers can use when implementing a mandatory vaccination policy.
Step 1: Coverage
Find out if your business is covered by the Occupational Health and Safety Act.
Step 2: What does the business want?
If so, determine if the company wants to have a mandatory vaccination policy in place at their workplace.
Step 3: Risk assessment
If so, start with a risk assessment.
The risk assessment will involve a critical examination of the employer’s workplace to determine whether the implementation of a workplace policy on mandatory vaccinations is justifiable.
Not only will employers be required to consider the physical aspects of the workplace, such as whether there is sufficient ventilation and the ability for employees to perform their jobs while maintaining an acceptable distance from each other r, but they will also be required to consider whether it is viable to continue to allow employees to work from home.
The benefits of working in the presence of each other are well known and while productivity can improve while employees work from home, creativity, collaboration and morale are negatively affected. Employers will also be required to review their current flexible and agile working policies and determine to what extent those policies can be changed.
It is important to note that the risk assessment will also identify those employees who, due to the risk of transmission through their work or their risk of serious Covid disease or death due to their age and comorbidities, should be vaccinated. .
The risk assessment should be conducted in consultation with all relevant stakeholders, including employees, unions (if applicable), health and safety representatives and / or the health and safety committee, optionally.
It is likely that at this early stage in the process those who intend to oppose the implementation of the compulsory vaccination policy will do so during the consultation process.
Employers are encouraged to use the consultation process to their advantage and understand employee concerns so that they can be effectively and efficiently managed and hopefully eliminated at this early stage in the process.
Objections to the possible implementation of a mandatory vaccination policy should be carefully considered and consulted and the views of the employer and employee should be documented in order to mitigate the risks associated with a dispute. which could arise at a later stage. The instruction provides that the key principle in this matter is mutual respect.
Step 4: Viable and Justified
Once the risk assessment is complete and the employer is of the opinion that the introduction of a mandatory vaccination policy in the employer’s workplace is viable and justifiable, the employer should develop a plan and / or modify its existing plan.
It is likely that most employers will have a plan in place and will simply be required to modify the existing plan.
The plan must set out the measures that the employer intends to implement with regard to the vaccination of its employees. He must also identify the employees he considers vulnerable. The instruction requires that the employer, in developing and implementing the plan, take into account the constitutional rights of its employees to bodily integrity, religion, beliefs and opinions.
The plan must then be made available for inspection by an inspector as provided for in the Act respecting occupational health and safety as well as by employees, their representatives, unions and health and safety representatives.
Step 5: Decide if a policy is necessary and justifiable
At this point, i.e. once the risk assessment is complete and the plan has been developed in consultation with relevant stakeholders, the employer may decide to implement a mandatory vaccination policy.
Step 6: Inform employees of the intention to implement the policy
In the event that the employer decides to implement the policy, it must inform all of its employees of its intention to implement a mandatory vaccination policy and of the date on which this policy will come into effect.
Employers are encouraged to allow employees a reasonable time (one to two months) to review the employer’s position before the policy is implemented – although this is not a legal requirement. However, it is preferable from a human resources and industrial relations perspective to inform employees beforehand.
Step 7: Inform employees of their right to object
Once employees are notified of the implementation date, the employer is required to inform employees of their right to object to the obligation to comply with the policy on constitutional or medical grounds.
In the event that an employee contemplates an objection, but does not understand what a âconstitutionalâ or âmedicalâ reason is, the employer must explain it to the employee by referring to the instruction.
The directive defines “constitutional grounds” as the rights to bodily integrity, religion, belief and opinion. “Medical reasons” are defined as an immediate allergic reaction of any severity to a previous dose or a known diagnosed allergy to a component of the COVID vaccine.
Employees should be given a period of time to object to the implementation of the policy. Objections should be in writing.
Step 8: Consider objections
Employers are required to consider these objections and take various factors into account, including public health imperatives and the efficient functioning of the employer’s business when making their decision.
Step 9: If the objection is on a medical basis
If the employee refuses to be vaccinated for medical reasons, the employer must advise the employee and allow the employee to seek advice from a health and safety representative, employee representative or union official .
The employer must also refer the employee for a more in-depth medical evaluation in the event of a medical contraindication to vaccination.
In the event that these interventions do not resolve the impasse between the employer and the employee, the employer should take the necessary measures to reasonably accommodate the employee in a position that does not require vaccination.
Step 10: If the objection is based on the right to bodily integrity, religion, belief or opinion
If the employee refuses to be vaccinated on constitutional grounds, the employer must counsel the employee and allow the employee to seek advice from a health and safety representative, employee representative or union official .
In the event that these discussions do not resolve the impasse between the employer and the employee, the employer should take the necessary steps to reasonably accommodate the employee in a position that does not require vaccination.
Step 13: Reasonable accommodation
The directive defines “reasonable accommodation” as any modification or adjustment of a job or the work environment which will allow an employee who fails or refuses to be vaccinated to keep his job and incorporates the relevant parts of the Code of Conduct. good practice: Employment of Persons with Disabilities published under the Employment Equity Act.
This may include an adjustment that allows the employee to work off-site or from home or in isolation in the workplace such as an office or warehouse or to work outside of normal working hours. In cases of limited contact with other people in the workplace, this may include requiring the employee to wear an N95 mask.
The code provides that reasonable accommodation includes, but is not limited to:
- Adapt existing facilities to make them accessible;
- Adapt existing equipment or acquire new equipment;
- Reorganization of workstations;
- Change training and assessment materials and systems;
- Restructure jobs so that non-essential functions are reassigned;
- Adjust working conditions, including working time and holidays;
- Provide specialized supervision, training and support in the workplace.
It is important to note that the code provides that the employer does not need to accommodate a disabled employee if doing so would place unjustifiable hardship on the employer’s business.
“Unjustifiable hardship” is an action which requires significant or considerable difficulty or expense and factors such as the possibility of a serious disruption to the operation of the business must be taken into account.
Step 14: Dismissal
In the event that the employer has taken all of the above measures and the employee maintains a refusal or failure to be vaccinated, which is in contradiction with the employer’s workplace policy, the employer can initiate proceedings to obtain the dismissal of the employee.
It is important to note that employers remain obliged to terminate on the basis of just cause and in accordance with a fair procedure. South African employers are only allowed to fire an employee for three reasons, namely professional misconduct, incapacity or the operational requirements of the employer. The procedure to be followed by the employer will be dictated by the reason for the dismissal.
It is therefore essential that the employer ensure that the path to termination is carefully and precisely recorded in writing so that the employer is able to demonstrate that he has complied with the instruction and the law of the employer. work in general before resorting to dismissal.
Commentary from Jacqui Reed, Employment Lawyer and Senior Partner at Herbert Smith Freehills.
Read: Businesses to go to Constitutional Court over South Africa’s vaccine warrants