With the South African vaccination drive well underway, the debate around whether or not COVID-19 vaccinations should be made mandatory in the workplace is on everyone’s minds. While this topic might spark some debate, we’d like to take the chance to share what the legal standpoint is.
According to the recently gazetted Directive by the Minister of Employment and Labour, Thulas Nxesi on 11 June 2021, employers are required to come up with reasonable resolutions so that all parties are accommodated should employees refuse COVID-19 vaccinations on medical and Constitutional grounds.
Constitutional grounds include:
- The right to bodily integrity; and
- The right to freedom of religion, belief and opinion
Medical grounds refer to immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine
The Consolidated OHS Direction now requires employers to include in its risk assessment whether it intends to make vaccinations compulsory. This is a three-step enquiry:
Firstly, it must take into account the operational requirements of the workplace. This means that the Direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act, 85 of 1993 to provide a working environment that is safe and without risk to the health of his employees and persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
Secondly, if the employer decides to make it mandatory once the risk assessment has been conducted, it must identify which of its employees will need to be vaccinated. To do this, the employer must identify those employees whose work poses a risk of transmission or a risk of severe COVID-19 disease or death due to their age or comorbidities. In other words, not every employee poses a risk.
Thirdly, having identified the employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available.
It is also worth noting that employers considering making the vaccination mandatory were supposed to have conducted a Risk Assessment of the workplace by 2 July 2021. If they haven’t done so yet, they’re advised to ensure that they undertake or update their risk assessments as a matter of urgency, and seek trusted legal advice where necessary.
In essence, the Directive does not make the vaccine mandatory. However, the onus is now placed on the employer to provide a working environment that is safe and without risk to the health of his employees.
If you’d like any advice or legal help around this topic, don’t hesitate to contact us!