Mandatory Covid-19 vaccines for workers in South Africa – what the law actually says

The Department of Employment and Labour recently released a direction on occupational health and safety measures in certain workplaces.

The directions apply to all employers that are permitted to continue or commence business operations under the current Disaster Management Act regulations – essentially all employers in South Africa, according to legal experts at law firm Werksmans Attorneys.

“Since the directions contain obligations on employers concerning the mandatory vaccination of employees, employers must be aware of these requirements and start taking steps to ensure compliance,” the firm said.

Under the directions, an employer has until 2 July 2021 to undertake a risk assessment to determine whether it will make the vaccination of employees mandatory.

Risk assessment

The directions require employers to state in the risk assessment whether or not they intend to make vaccination mandatory in its workplace, based on operational requirements.

“The employer may therefore decide, after its risk assessment and taking into account its operational requirements and working environment, that it will not make vaccination mandatory,” Werksmans said.

“Operational requirements, in this case, are not elaborated on in the directions but are likely to encompass factors such as whether employees operate remotely, social distancing limitations and sensitisation measures in the workplace, the usage of PPE, and the prevalence of Covid-19 in the workplace.”

If the employer does intend to make vaccination mandatory, it is required to identify the employees for whom vaccination is mandatory, based on:

• Their risk of transmission of Covid-19 through their work; and/or
• Their risk for severe Covid-19 disease or death due to factors such as age or comorbidities.

“As such, it is essential to note that the employer does not have to adopt a vaccination policy that requires all of its employees to be vaccinated, and the policy can require only those employees who are at risk, as assessed in the risk assessment, to be vaccinated.

“If the employer concludes that it will not adopt a mandatory vaccination policy there should also be objective reasons as to why this was decided.”

Develop a plan

After the risk assessment has been done, the employer must develop a plan or amend an existing plan in which it:

• Outlines the protective measures it intends to implement concerning employees’ return to the workplace (in this regard the employer would in all likelihood already have such plan in place, to deal with issues such as social distancing measures and the usage of PPE in the workplace); and

• If the employer intends to make vaccination mandatory for any employees, it must also outline how it intends to implement a vaccination program.

If there is mandatory vaccination for any category of employees, the employer must –

• Notify the employee of the need to be vaccinated once the vaccine becomes available for that employee. The directions do not require the employer to obtain or pay for the vaccine, but it would reasonably be required for the employer to assist the employee to register for either private or public vaccination;

• Notify the employee of his/her right to refuse to be vaccinated on constitutional or medical grounds. If the employee refuses on these grounds, the employer should counsel the employee on these issues, and, if necessary, attempt to accommodate the employee through measures other than vaccination;

• Notify the employee of his/her right to consult with a union or health and safety or worker representative;

• If practical, arrange transport for the employee to the vaccination site; and

• Allow the employee paid time off for side effects suffered from the vaccination.

Employers in unionised environments must also ensure that any vaccination measures align to any collective agreement already in place with their unions, Werksmans said.

“It appears that these directions are aimed at ensuring that employers update their risk assessments and their plans for protective measures in light of the third wave of Covid-19 and initiation of the vaccine rollout in South Africa.

“The directions seek to ensure that employers’ plans for protective measures take into account any subsequent governmental and health changes introduced since the implementation of their existing plans.”

The directions, however, don’t outline any definitive consequences that may arise if employees refuse to be vaccinated in circumstances where employers have implemented mandatory vaccination policies, the firm said.

Whether employers will be entitled to dismiss employees who refuse to be vaccinated will consequently be determined concerning the employer’s and employee’s particular circumstances.

“As with all matters employment-related the principles of fairness and equity will need to prevail.”

Commentary by Anastasia Vatalidis (director) and Bradley Workman-Davies (director) at Werksmans Attorneys.

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