Employment and labour minister, Thulas Nxesi, recently published a new directive focusing on COVID-19 in the workplace. The directive includes reference to the vaccine and the process companies need to follow if they plan to make the vaccine mandatory.
The directive gives an employer 21days to decide on whether it intends to make vaccination mandatory, taking into account the operational requirements of the workplace.
Compulsory Vaccinations
Should the employer decide to make vaccinations mandatory, this must be included in their COVID-19 plan, along with how this will be implemented when the vaccines become available. It must be noted that given the phased nature of the National Vaccination Programme an employer may only make it a requirement 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.
If the employer decides to make vaccination mandatory, they need to update their risk assessments and identify which of their employees will be required to be vaccinated. In determining this, the employer must identify those employees whose work poses a risk of transmission or risk of severe COVID-19 owing to their age or health status. Workers who work from home or who do not come into close working contact with other workers, or the public, are low risk and would not necessarily need to be part of the mandatory vaccination programme.
Awareness about vaccines
Employers are required to provide workers with information raising awareness about the nature of vaccines used in the country, benefits of the vaccine, contraindications, and the nature of any risk or side effects of the vaccine. Employees must also be given administrative support to assist them in registering on the electronic vaccine data system registration portal for COVID-19.
Employees must be given paid time off to vaccinate, provided they can provide proof of vaccination, and if an employee suffers side effects as a result of a vaccine and is unable to attend work, the employee is entitled to paid sick leave. The employer may accept a vaccination certificate issued by an official vaccination site in the absence of a medical certificate as proof of incapacity.
When making a decision around the vaccine, employers must also take into consideration its general duties in terms of the OHS Act, to provide a working environment that is safe and without risk to the health of its employees and persons other than those in its employment who may be directly affected by its activities.
The right to refuse vaccines
The directive states that employees still have a right to refuse the vaccine on constitutional or medical grounds and that the employer must take into consideration the rights of employees to bodily integrity and the right to freedom of religion, belief and opinion when developing and implementing the plan mentioned above.
In the instance of a refusal to vaccinate, the employer should counsel the employee, and if requested, allow the employee to seek guidance from a health and safety representative, worker representative, or trade union official; refer the employee for medical evaluation should there be a medical ground for refusal; and if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
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