JACQUI REED: Mandatory vaccination: what do employers need to consider?

It was reported in the media recently that Sasol, one of SA’s largest employers, intends to request approval for mass vaccination of its employees and service providers in anticipation of a planned shutdown that will require more than 20,000 people on site for 23 days. The purpose of this request is to avert a super spreader event.

According to media reports, some employees and community members described Sasol’s stance on vaccinations in the workplace as “corporate bullying”.

Sasol recently confirmed its commitment to providing a safe and healthy working environment while respecting the rights of individuals to choose whether to be vaccinated or not. However, employees who will be participating in activities on site during the shutdown period are expected to submit either proof of vaccination or a negative Covid-19 test result not older than seven days before commencement of the shutdown activities, and to be repeated during the shutdown period every seven days. Responsibility for payment for such tests remains a subject of discussion. Sasol has not, therefore, implemented a mandatory vaccination policy.

The government’s position as expressed by President Cyril Ramaphosa is that no-one will be forced to get the Covid-19 vaccine. However, on June 11 the department of employment & labour promulgated an amended consolidated direction on health and safety that provides for implementation of a mandatory vaccination policy by SA employers as long as certain requirements are fulfilled. These include:

• Conducting a risk assessment to determine whether it intends implementing a mandatory vaccination policy and, if so, identifying those employees who must be vaccinated due to various risk factors;
• Developing a vaccination rollout plan outlining vaccination measures the employer intends to implement;
• Consulting on the risk assessment and the plan with any representative trade union or any health and safety committee or representative; and
• Making the plan available to an inspector designated in terms of section 28 of the Occupational Health & Safety Act, a trade union representative, the health and safety committee or a health and safety representative.

Unlike SA, several jurisdictions around the world where the vaccination programme is at an advanced stage have made vaccinations compulsory in certain sectors. The UK made vaccinations mandatory for care home workers with effect from October. France, Italy and Greece made vaccinations mandatory for health workers. The US department of veteran affairs mandated vaccination for health care workers. Canada is making vaccines mandatory for all its federal workers by September.

There have been reports that CNN in the US dismissed three unvaccinated employees who attended the workplace in circumstances where a mandatory vaccination policy for those attending the workplace has been implemented. Inevitably, the question that arises is whether an SA employer that has implemented a mandatory vaccination policy is entitled to dismiss an employee who fails or refuses to be vaccinated.

The amended direction provides that a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business. This clearly indicates that employers are obliged to balance all of these competing rights and considerations before taking any decisive action.

Employers are obliged to notify employees who are identified for mandatory vaccination in its risk assessment and vaccination rollout plan that they are entitled to refuse vaccination on medical (immediate allergic reaction of any severity to a previous dose or a known diagnosed allergy to a component of the Covid-19 vaccine) or constitutional grounds (the right to bodily integrity in section 12(2) of the constitution and the right to freedom of religion, belief and opinion in section 13 of the constitution). The amended direction further provides that where an employee refuses to be vaccinated on a constitutional or medical ground, 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 further medical evaluation should there be a medical contraindication to the vaccine; and
• If necessary take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

“Reasonable accommodation” is described in the amended direction as being 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. It incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities. This might include an adjustment that permits the employee to work offsite or from home or in isolation within the workplace (such as working outside of ordinary office hours) or a requirement to wear an N95 mask.

The amended direction does not provide employers with any further guidance as to what steps should be taken where an employee fails and/or refuses to be vaccinated. However, it appears on the face of it that employers will be permitted to dismiss employees who refuse or fail to be vaccinated in circumstances where the objection is not based on a valid medical or constitutional ground and where they cannot be reasonably accommodated by the employer.

However, employers are cautioned against implementing a process that could result in an employee’s dismissal for failing or refusing to vaccinate in the absence of taking considered legal advice as it is always necessary to consider each case on its own merits.

• Reed is a senior associate at Herbert Smith Freehills.