23 Jun 2021

Covid-19 Vaccine in the Workplace - is it Mandatory?

by Deirdre Venter, Partner, Johannesburg, Reabetswe Mampane, Associate, Johannesburg,
Practice Area(s): Employment |

During 2020, what we all considered a normal way of life was very quickly shaken up by the global Covid-19 pandemic and the implementation of the national state of disaster effective from 27 March 2020, which we continue to be under today through different levels and restrictions. And, although challenging, we have all been playing our part to “flatten the curve”, from working primarily from home and learning how to operate the Microsoft Teams and Zoom platforms, to wearing face masks whenever we venture outside our homes.

A major part of flattening the curve and attempting to return to some semblance of normalcy is the worldwide introduction of vaccines for the Covid-19 coronavirus. South Africa has already rolled out its national vaccination programme, with health workers and persons over the age of 60 among the first to be vaccinated. And recently, with the Consolidated Direction on Occupational Health and Safety Measures in certain Workplaces issued in terms of Regulation 4(10) of the Regulations made under section 27(2) of the Disaster Management Act, No. 57 of 2002 and signed by the Minister of Employment and Labour on 28 May 2021 (“the Directions”), employers and employees have been made to consider whether being vaccinated before returning to the workplace is mandatory.

The Directions apply to “employers and workers in workplaces permitted to continue or commence operations under the Regulations”. It directs an employer to undertake the following steps regarding the requirement that employees be vaccinated before returning to the workplace:

Undertake a Risk Assessment within 21 days

This requires an employer to implement the minimum measures contained in the Directions with consideration to the requirements of the Regulations for Hazardous Biological Agents of the Occupational Health and Safety Act, No. 85 of 1993, as amended (“the OHSA”) and the specific workplace circumstances.

An employer is also required to, within 21 days of the operation of the amendment to the Directions and in accordance with sections 8 and 9 of the OHSA, assess the operational requirements of the workplace and determine whether vaccination will be made mandatory and if so, identify employees who are considered high-risk and must be vaccinated. “High-risk” would be employees who pose the risk of transmission of Covid-19 by virtue of the nature of the duties they perform, or those employees who have comorbidities.

Develop a plan

Once the risk assessments have been conducted, the employer must use these assessments to develop a plan or amend an existing plan:

  • detailing the measures in place to protect employees returning to the workplace (section 3(2) of the Directions details what must be included in this plan); and
  • the workplace vaccination roll-out programme the employer intends to implement in respect of its employees, taking into consideration the Directions and its guidelines, as well as the employees’ right to bodily integrity and right to freedom of religion, belief and opinion in terms of the Constitution (section 3(3) of the Directions details what must be included in this plan).
Consult affected parties and make the plan available

The employer must consult representative trade unions and the health and safety committee or representative regarding the risk assessment and the plan. The plan must also be available for inspection by an inspector and the health and safety committee or representative.

The Directions provide what administrative measures employers must put in place regarding the plans and also provides directions on social distancing measures, symptom screening, sanitisers, disinfectants and washing of hands, cloth masks, ventilation and the public’s access to the workplace.

Employers and employees have been questioning whether requiring employees to be vaccinated should be mandatory in order for employees to return to the workplace. In terms of the Directions, an employer is required to conduct the risk assessment and develop a plan prior to deciding whether vaccinations will be mandatory. Mandatory vaccinations will depend on the operational requirements of the workplace and will only apply to high-risk employees.

When considering whether to make vaccination mandatory, an employer must remember that employees do have the right to refuse to be vaccinated based on their Constitutional rights to bodily integrity and freedom of religion, belief and opinion.

The Direction allows employers to discipline employees who refuse to be vaccinated where vaccinations are mandatory, but of course such discipline must be in line with the Labour Relations Act, No. 66 of 1995 as amended.

Employers are encouraged to consider and give effect to the Directions as soon as possible.