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Employees Can’t Be Forced To Be Vaccinated

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After much debate about the vaccination of employees, the Department of Employment and Labour has reached a decision.

Minister of Employment and Labour, Thulas Nxesi recently released a new gazette highlighting that employers should be reasonable and try to accommodate employees who refuse to be vaccinated for medical and constitutional grounds. 

“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. This also refers to a known/diagnosed allergy to a component of the COVID-19 vaccine.

Employers will now have to include in risk assessments whether they intend to make vaccinations compulsory. According to the Consolidated OHS Direction, this is a three-step enquiry:

  1. The employer must make that assessment taking 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.
  2. If the employer decides to make vaccination mandatory once the risk assessment has been conducted, it must then identify which of its employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated. 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.
  3. After identifying employees who are required to be vaccinated, the employer must amend its plan to include the measures to implement the vaccination of those employees as and when COVID-19 vaccines become available in respect of those employees. This must take into account the Guidelines set out in Annexure C of the June 2021 version of the Direction. Given the phased nature of the National Vaccination Programme based on criteria determined by NDOH from time to time, an employer may only make it an obligation once the employee becomes eligible under the programme for vaccination 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,” said Minister Nxesi.

This might include an adjustment that permits the employee to work offsite 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.

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