On 11 June 2021, the Minister of Employment and Labour released the much-anticipated vaccination guidelines. These are included in the amended Consolidated Direction on Occupational Health and Safety Measures in certain Workplaces (the “Directive”).

While some have interpreted the Directive as giving employers carte blanche to impose mandatory vaccination policies, this is not the case. Employers will still need to:

• ensure that they have a reasonable and justifiable reason for implementing a mandatory vaccination policy; and
• balance their employees’ constitutional rights in doing so.
  
  

We discuss the key takeaways of the Directive and important considerations below.

Status of the vaccination guidelines

The vaccination guidelines are intended to guide employers, employer organisations, employees, trade unions, conciliators, arbitrators and the courts in determining the fairness of a mandatory vaccination policy and its implementation. The Directive states that departures from the guidelines may be justified in proper circumstances, depending on the size or nature of the workplace.

Employers should always be guided by fairness and their specific circumstances.

Vaccination risk assessment and plan

Every employer must undertake a risk assessment within 21 days of the coming into force of the amendment to the Directive. This risk assessment must take into account:

• the operational requirements of the workplace;
• whether the employer intends to make vaccination mandatory; and
• if so, identify those employees who must be vaccinated by virtue of the risk of transmission through their work or the risk of severe COVID-19 symptoms including death (due to their age or comorbidities) that must be vaccinated (“identified employees”).
  
  

On the basis of the risk assessments, employers must develop a plan or amend an existing workplace plan outlining the measures that the employer intends to implement in respect of vaccinating its employees in accordance with the Directive (the “vaccination plan”).

The vaccination plan must include:

• The identified employees;
• How the employer will comply with its obligations in terms of the Directive; and
• Subject to any applicable collective agreement, whether the employer intends to make it mandatory for identified employees to be vaccinated as and when vaccines become available for them.
  
  

In addition, a mandatory vaccine plan for identified employees should cater for the following:

• Notification to identified employees of:
  • The obligation to be vaccinated as and when a vaccine becomes available;
  • Their right to refuse to be vaccinated on constitutional or medical grounds (ie, bodily integrity, freedom of religion, belief and opinion, and an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine respectively); and
  • The opportunity to request a consultation with a health and safety representative, a worker representative or trade union official;
• If reasonably practicable, provision of transport to and from the relevant vaccination site; and
• Should an employee suffer side effects from the vaccine, provision of paid time off to recover if the employee is no longer entitled to paid sick leave or assistance with a COIDA compensation claim.
  
  

Importantly, the Directive states that “in developing and implementing a vaccination plan, an employer must take into account the [constitutional] rights of its employees to… bodily integrity…freedom of religion, belief and opinion”.

The Directive further states that an employer must also consider “public health imperatives … and the efficient operation of the employer’s business.”

As mentioned above, employers must undertake a delicate balancing act, harmonising their health and safety obligations, operational requirements with the constitutional rights of their employees.

Further to this point, the Directive expressly recognises employees’ right to refuse to be vaccinated on constitutional or medical grounds. If employees refuse, employers should be careful not to dismiss their concerns out of hand. Rather, they should:

• counsel employees and, if requested, allow them to seek guidance from a health and safety representative, worker representative or trade union official;
• refer employees for further medical evaluation should there be a medical contraindication for vaccination; and
• if necessary, take steps to reasonably accommodate them in a position that does not require them to be vaccinated.
  
  

“Reasonable accommodation” means any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. According to the Directive, this might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might require the employee to wear an N95 mask.

Employers of more than 50 employees must now submit a record of their risk assessments, together with their vaccination plans, to their health and safety committees. These records must also be available for any inspection conducted by the Department of Employment and Labour.

Vaccine information campaign

Employers must make workers aware of the:

• nature of vaccines used in the country;
• benefits associated with these COVID-19 vaccines;
• contraindications for vaccination; and
• nature and risk of any serious side effects such as severe allergic reactions.
  
  

Employers are directed to the information supplied on the National Institute of Occupational Health website in this respect.

Administrative support and paid time off for vaccinating

Employers must give employees administrative assistance in registering on the Electronic Vaccine Data System Registration Portal for COVID-19.

Employers must also give their employees paid time off to be vaccinated, provided that employees provide proof of the vaccination that has occurred or is to occur during working hours.

Vaccination side effects

The Directive states that employers need not take the same measures that they are required to take in respect of employees with COVID-19 related symptoms, such as isolating and assessing the risk of transmission, for employees who present with symptoms one to three days after the vaccination.

Further, as mentioned above, should an employee suffer side effects as a result of the vaccine and is unable to attend work, the employer must place the employee on paid sick leave or lodge a COIDA claim. An employer may accept a vaccination certificate issued by an official vaccination site in lieu of a medical certificate.

Comment

The Directive provides greatly needed parameters for employers considering whether to implement a mandatory vaccination policy, specifically, in respect of whom and how such a policy can apply.

Significantly, the Directive does not prescribe whether employers may or may not require employees to be vaccinated. This is a decision that employers must make following a risk assessment, taking into account the risk to its employees, its business imperatives and the employees’ countervailing constitutional rights.

Employers are encouraged to conduct their risk assessments within the 21-day deadline and, where applicable, prepare their vaccination plan. Should employers require any assistance in determining their obligations or preparing the relevant documentation, we recommend that they seek advice from their chosen legal practitioner.