Mandatory vaccination policies in the workplace

by Nikita Theodosiou. Discovery got the ball rolling by publicly announcing that it will be implementing a mandatory vaccination policy, and many other companies are following suit. If you are planning on implementing a mandatory vaccination policy in your workplace, read on for details regarding the process to be followed. If you are an employee, read on to understand how a policy of this sort may effect you.

Legal basis for implementation of mandatory vaccination policies

Legally mandated vaccination may appear to be in direct contradiction with an individual’s constitutional right to freedom and security of a person as enshrined in section 12(2) of the Constitution, which provides every person with the right to make decisions concerning his/ her own body, including health and medical interventions and treatment. However, it is important to understand that the right to freedom and security of a person is not the only constitutional right at play here. Section 11 of the Constitution affords everyone the right to life; and section 24 provides for the right to a safe environment.

The above makes it clear why section 36 was included in the Constitution. Section 36 provides for the limitation of constitutional rights in so far as it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This balancing exercise must be undertaken having due regard to the following: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and whether less restrictive means are available in order to achieve the intended purpose.

In the Labour Law space, legislation and regulations provide for new company policies to be implemented in the workplace in order to provide for the mandatory vaccination of employees. This legislation includes the Labour Relations Act, the Employment Equity Act, the Basic Conditions of Employment Act, the Occupational Health and Safety Act and more recently, the Amended Consolidated Direction on Occupational Health and Safety measures in certain workplaces, released by the Department of Employment and Labour and published in the Government Gazette on 11 June 2021 (the “Directions”).

The Directions are applicable to all employers that are permitted to continue or commence business operations under the Regulations made under section 27(2) of the Disaster Management Act 57 of 2002 and, as such, apply to all employers currently operating in South Africa. Since the Directions contain obligations on employers in relation to the mandatory vaccination of employees, it is of vital importance that employers are aware of these requirements and that the stipulated, regulated steps are taken in order to ensure compliance.

Under the Directions, every employer is required (take note that this is a requirement, not merely a recommendation) to undertake a risk assessment in order to determine whether it will make the vaccination of its employees mandatory, within 21 days of the Directions coming into effect. The Directions came into effect on the day that they were published in the Government Gazette, being 11 June 2021. Accordingly, every employer should in fact have conducted their risk assessment by 2 July 2021. If you have not conducted the risk assessment as yet, it is high time that you do so.

The risk assessment

Upon conducting the risk assessment, the employer is required to make a determination as to whether or not it intends to make vaccination mandatory in its workplace, based on its operational requirements and to state the outcome of the decision in the risk assessment itself. The determination may be to either make vaccination mandatory or not, but a risk assessment is required to be attended to either way before reaching that decision.

Aspects that an employer should consider when attending to the risk assessment include, but are not limited to the following: whether all/ the majority/ a small percentage of the employees are able to work from home effectively, or whether the nature of the business requires them to work from the office; whether there is sufficient space in the office for all employees to maintain the appropriate distance between one another; whether local or international travel is required of all, or of certain employees’ roles; and whether any employees are considered to be particularly vulnerable to COVID-19 due to factors such as age or comorbidities.

Another option to consider is that the employer may make a determination that vaccinations will only be mandatory for certain employees who are at risk, as assessed in the risk assessment, and not others based on the following considerations:

• The employees’ risk of transmission of COVID-19 through their work; and/or
• Their risk for severe COVID-19 disease or death due to factors such as age or comorbidities.

If the employer concludes that it will not adopt a mandatory vaccination policy, there should also be objective reasons as to why this was decided.

The plan for implementing protective measures

After completing the risk assessment, the next step is for the employer to develop a plan or amend an existing plan in which it outlines the protective measures it intends to implement in relation to its employees’ return to the workplace (most employers would already have a plan of this sort in place  to deal with issues such as social distancing measures and the usage of PPE in the workplace, which may need to be updated). If the employer intends to make vaccination mandatory for any employees, it must also outline how it intends to implement a vaccination program.

In the event that an employer opts for mandatory vaccination for any category of the employees, the Directions place the following obligations on the employer:

• To notify the employee of the need to be vaccinated once the vaccine becomes available for that particular employee (now that everyone over 18 years old is eligible for vaccination, the availability concern should no longer be an issue);
• To notify the employee of his/her right to refuse to be vaccinated on constitutional or medical grounds. If the employee refuses on these grounds, the employer should counsel the employee on these issues; and, if necessary, attempt to accommodate the employee through measures other than vaccination;
• To notify the employee of his/her right to consult with a union or health and safety or worker representative;
• If practical, arrange transport for the employee to the vaccination site; and
• Allow the employee paid time off for side effects suffered from the vaccination.

Employers in unionised environments must also ensure that any vaccination measures align to any collective agreement already in place with their unions.

Employee refusal to be vaccinated

What happens if a mandatory vaccination policy has been implemented by the employer and one or more employees refuse to be vaccinated? Interestingly, the Directions do not provide for any definitive consequences that may arise if employees refuse to be vaccinated in circumstances where employers have implemented mandatory vaccination policies.

If an employee was to refuse to be vaccinated in spite of the company’s mandatory vaccination policy, this may be grounds for dismissal due to operational incapacity. However, this would need to be assessed on a case by case basis having due regard to both the employer and the employee’s particular circumstances. I would caution employers against being too hasty in dismissing employees who refuse to be vaccinated, as section 187(1)(f) of the LRA prohibits dismissals that discriminate against employees based on their religion, conscience, belief, political opinion or culture.

If there are ways to accommodate unvaccinated employees within the workplace (in terms of allowing them to work from home, or to accommodate them in an isolated office, ensure that they wear N95 masks in the office as opposed to the material alternative, etc), then those options should always be explored and exhausted first before considering dismissal.

There are however some circumstances in which the operational requirements of an employee’s role require them to be vaccinated, for example if being able to travel internationally is critical to their role. In these instances, if those employees are not able to perform their role effectively in the objective sense without being vaccinated, then dismissal for operational incapacity may be the employer’s last/ only option.

*Article updated by Consilium Legal on 15 October 2021 to reflect grounds for dismissal by “operational incapacity” instead of “constructive dismissal”, in the last three paragraphs of the article above.

Main image credit: Photo by Hakan Nural on Unsplash.

Nikita Theodosiou is an Associate at Consilium Legal, a boutique legal and business advisory.

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