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While the rollout of the COVID-19 vaccine in South Africa is a fundamental key to regaining economic ground in the wake of a prolonged battle with the virus in Southern Africa, it seems that progress is regrettably slow. Many employers may wonder what the implication of a mandatory vaccine policy might be in their office or place of work. Until the 11th of June 2021 there had been no legislation which allowed the implementation of such policies. However, when the Consolidated Direction on Occupational Health and Safety Directive (the Directive) was issued on said date, it made way for these kinds of policies to be implemented.

Beyond the Occupational Health and Safety Act, which mandates that all employers must provide and maintain a safe working environment that reasonably minimises all risk to the health of their employees, the Directive empowers them to take a more proactive approach in relation to the pandemic era.

However, the National Health Act makes it clear that a health service, which includes the administration of a vaccination, requires consent from those who receive it, given that the failure to treat the person does not result in a serious risk to public health.

For this reason, it is pivotal that those employers wishing to implement a vaccination policy do so with caution. Caution is necessary since there are three factors at play here. Firstly, a vaccination policy has to be legal and reasonable. Secondly, employees will still need to determine what they consider to be “a serious risk to public health”, and duly identify which persons are required to be vaccinated based on their role in the workplace. Thirdly, the South African Constitution states unambiguously that everyone has the right to bodily and psychological autonomy, including the right to security in and control over one’s own body.

Nonetheless, limits may be imposed by the Constitution on one’s right to bodily and psychological autonomy in as far as it is considered reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom.

Taking all of these factors into account, an employer’s responsibility to secure a safe working environment must be balanced with the employees’ constitutional right to bodily autonomy in order to determine whether justifiable grounds exist that may limit this right.

Additionally, the Labour Relations Act, in section 5(2) (c), prohibits an employer from prejudice against an employee, should they fail or refuse to do something that the employer may not lawfully permit or require them to do. However, now, with the addition of the new regulations set out in the Directive, employers find it within their right to implement mandatory vaccination policies.

Similarly, section 187(1) (f) of the Labour Relations Act prohibits the dismissal of an employee as a result of discrimination against said employee based on their religion, conscience, belief or culture. A similar prohibition is also contained in section 6(1) of the Employment Equity Act, which also serves as a safeguard for employees.

Nevertheless, an employee may still refuse vaccination based on medical or constitutional grounds, granted that they provide clear and adequate reasoning for their refusal. Should the employee refuse (or are unable) to be vaccinated, the responsibility lies with the employer to provide an alternative that limits contact with other employees, such as an arrangement to work from home or after-hours.

Failing this, if no alternative can be found (and the worker must work in close proximity to others), the employee who refused vaccination may be obligated to wear an N95 mask at all times during their work shift.

Where previously an employer had a very limited scope to enforce a vaccination policy in the workplace, it is now a possibility. Naturally, the vaccine rollout will still need to run its course, during which time employees who qualify for vaccination may be mandated to do so. Yet, while there is now a succinct legislative ground for implementing mandatory vaccine policies in the workplace, an employer may still not simply dismiss an employee on the grounds of refusal to be vaccinated. If there are no grounds for the refusal, and the alternative working conditions are not adhered to, further steps (disciplinary or otherwise) will be required before dismissal becomes a possibility.

Should they choose to do so, employers are advised to use caution and to consider expert advice before these mandatory vaccination policies are implemented. It is also important for employers wishing to create a safe and healthy working environment, to keep motivating employees to adhere to basic Covid-19 preventative measures (such as mask‑wearing and the intermittent sanitisation of hands), while encouraging them to agree to be vaccinated through means of education as opposed to coercion.

Our labour law experts will gladly assist both employers and employees in this regard.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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