Employers must do risk assessment on operational requirements before deciding on mandatory employee vaccinations
Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated on medical and constitutional grounds. This is according to the new consolidated direction on occupational health and safety (OHS) measures in certain workplaces, which has been gazetted by the Minister of Employment and Labour, Thulas Nxesi.
“The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business,” reads the guidelines.
Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an 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 an employer to include in its risk assessment whether it intends to make vaccinations compulsory, through a three-step process. An assessment must be made after taking operational requirements of the workplace into account. Vaccinations are not mandatory, but every employer must take into account its general duties under the OHS Act, which is to provide a working environment that is safe and without risk to the health of employees and persons.
- Once the risk assessment is completed and if the employer decides to make vaccination mandatory, then employees who require vaccination must be identified. 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 such a risk – for example workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.
- A plan should be put in place, which should include measures to implement the vaccination of identified employees when Covid-19 vaccines become available, taking into account the relevant government guidelines.
On the third point, the Department of Labour has noted that an employer may only make it an obligation once the employee becomes eligible under the National Vaccination Programme and has been registered on the Electronic Vaccination Data System and given a date for vaccination.
"What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions," the minister said.
This might include an adjustment that permits the employee to work off-site or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask.
