Company admission policy not a mandatory vax policy

Labour Court rules on admission policy to workplace premises.

The Labour Court (LC) has ruled on the lawfulness of an employer's policy regulating how employees would be allowed to access the employer's premises in the context of the Covid-19 pandemic.

In the case, the company had implemented a policy that it would only admit employees to its premises who had been either fully vaccinated and provided proof of vaccination or, in the case of employees who chose not to vaccinate or disclose their vaccination status, if they could produce a negative Covid-19 test result on a weekly basis at their own cost (the admission policy).

The employee was unwilling to have the Covid-19 vaccination but would take a weekly test for Covid-19 if the company paid for the tests, which the company would not do.

Consequently, the employee was denied access to the company’s premises. The employee then provided the employer with a Covid-19 vaccination exemption form from a medical practitioner, which recommended that the employee avoid the Covid-19 vaccine because of “cardiac arrhythmia”.

The company stood by its admission policy, and required further information about this medical condition. An ECG report was provided to the company, but no cardiologist’s report was forthcoming.

Trade union Solidarity brought an urgent application seeking an order, inter alia, declaring the admission policy unlawful and directing the company to permit the employee to tender her services in terms of her contract of employment.

The judge found that the application did not demonstrate any facts that the company’s admission policy constituted a mandatory vaccination policy.

The court did, however, accept that the admission policy provided employees with an option to vaccinate and provide proof of vaccination and, if they chose not to do so, to provide weekly Covid-19 test results (at their own cost).

The LC ultimately held that the company was discharging its statutory duty to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to its employees’ health.

The application was dismissed.

It should be noted that the LC was required only to determine lawfulness on the basis of the contract of employment and the Consolidated Direction (the Direction) issued in terms of the regulations to the Disaster Management Act, 2002 (the DMA) and/or the Occupational Health and Safety Act, 1993 (OHSA).

The court noted that it was not required to determine:

  • Whether the admission policy was fair or reasonable;
  • Whether the admission policy infringed upon the employee’s constitutional rights or rights under the Employment Equity Act, 1998;
  • Who should bear the costs of the Covid-19 testing, or whether the employer’s failure to accept such costs was unreasonable; or
  • Whether weekly Covid-19 testing was un/reasonable.