JACQUI REED: Can employees be dismissed for declining the jab?

Last week it was reported that Discovery, SA's largest medical scheme administrator, will makeCovid-19 vaccinations compulsory from the start of 2022.

The report noted that the mandatory vaccination policy recognises an employee's right to object to the vaccination and will include a process to consider their health, religious and other legal rights, which it will seek to balance with the rights of its other employees.

The question arises whether an employee whose employer has implemented a mandatory vaccination policy can be dismissed for failing or refusing to get vaccinated.

The Occupational Health and Safety Act requires employers to provide employees with a safe and healthy working environment, and the Consolidated Direction on Occupational Health and Safety in Certain Workplaces now makes provision for the implementation of a mandatory vaccination policy by employers, provided certain requirements are met.

These include conducting a risk assessment, which must be done in consultation with the relevant stakeholders, and developing a plan that outlines the measures it intends to implement in vaccinating its employees.

In the event that an employer implements a mandatory vaccination policy and an employee fails or refuses to get vaccinated, the employer will be obliged first to determine whether the employee's objection is based on a constitutional ground (the right to freedom of religion, belief, opinion and bodily integrity) or a medical ground (severe allergic reaction).

Should the objection be based on a constitutional ground, the employer is required to counsel the employee and, if requested, permit the employee to seek guidance from a trade union official, employee representative or health and safety representative. The employer should then take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

In the event that the objection is based on medical grounds, the employer should refer the employee for further medical evaluation. The results of the evaluation will be relevant in determining the employer's approach to that employee.

Where the objection is not based on either of these grounds, the employer remains obliged to counsel the employee, permit them to seek guidance and attempt to reasonably accommodate them. In certain instances, counselling and guidance may not persuade the employee to get vaccinated.

In the event that the employer's workplace, and/or the nature of the employee's position, duties or responsibilities is such that it is not possible to accommodate the employee's objection and the employee maintains a refusal to be vaccinated, the employer may be entitled to dismiss the employee.

Some commentators are of the view that an employee who refuses to be vaccinated where a mandatory vaccination policy is implemented may be retrenched. This approach is not recommended as it is improbable that the position the employee holds is redundant and the employer's operational requirements are such that the position is no longer required for economic, structural, technological or similar reasons.

The preferred approach may be to dismiss the employee, either on the basis of a failure to comply with a workplace rule (misconduct), or on the basis of incapacity. The facts of each case will determine the approach to be taken.

• Reed is senior associate at Herbert Smith Freehills.