What have employers learnt in the aftermath of Covid-19?

It has been almost four years since the country went into lockdown in response to Covid-19, which had major implications for many of us.

Employment lawyers were flooded with requests for urgent advice on how employers should continue to operate their businesses, whether they were allowed to do so under the prevailing disaster management regulations, and most importantly whether the obligation to pay employees remained intact in these unprecedented circumstances.

We learnt very quickly that there were no hard and fast answers, and that each employer had a unique workplace that required bespoke solutions. As employers stumbled through the hard lockdowns and into the soft lockdowns (and then back again), they were faced with the reality of getting back to business in a world where the pandemic was to be part of our lives. For some, (mostly larger, white-collar corporates) this meant an acceleration of the push towards remote working or hybrid working arrangements.

For blue-collar workers, this option was often not available. The regulations required people exposed to the virus to isolate for an extended period and this, coupled with high rates of absenteeism by people who had contracted the virus (or had similar symptoms), served only to exacerbate the headaches experienced by employers.

With the arrival of the vaccines in late 2020, many were relieved that a sense of normality might return. However, many employees were sceptical of the vaccine and indicated that they would not be vaccinated, for reasons stretching from their personal beliefs, religious convictions, medical and safety concerns and (not infrequently) conspiracy theories.

After much speculation as to whether the SA government would make vaccination mandatory, it instead deferred this decision to employers. Debates raged among employment lawyers about whether employees could be forced to vaccinate and, if they refused, how employers should deal with the problem.

While the regulations on vaccination permitted employers to implement mandatory vaccination policies (subject to certain conditions), many attorneys advocated a cautious approach, alive to the risk of costly litigation, loss of talent and polarisation of attitudes at the workplace. Some employers nevertheless decided to take the plunge and implemented policies that required employees to be vaccinated, or if they did not wish to do so to produce a regular negative Covid-19 test (often at their own cost). This option of regular testing, both unpleasant and costly, was often cited by employers as an “alternative” to vaccination.

Many of the employees who refused to be vaccinated, or who could not convince their employers of their medical, safety, religious or other concerns, and who also could not afford to pay for regular testing, were often dismissed. Those dismissals came in the form of “incapacity”, “retrenchment” or “misconduct”. Justifying a dismissal for “incapacity” was fraught with difficulty, not least because the employees who were supposedly permanently incapacitated were of course perfectly capable of doing their jobs in most instances.

Similar difficulties emerged when retrenching employees whose positions were obviously not redundant, and dismissing employees for allegedly contravening a workplace rule on mandatory vaccination, because the fairness of such a rule was debatable (not to mention that the employee’s conduct could not be said to constitute a calculated challenge to the employer’s authority).

Nevertheless, the first dismissal disputes made their way through the CCMA. The first six months revealed a CCMA that was willing to endorse the actions of employers, finding every mandatory vaccination dismissal referred to it to be fair. But as society began to normalise and the regulations were relaxed, the tide began to turn and several CCMA awards were handed down in favour of employees who refused to vaccinate.

Commissioners understood that dismissals in these circumstances required employers to clear a high hurdle to show that they had been fair, and were correctly critical of employers who had failed to show that they had taken steps to reasonably accommodate employees. The vaccination policies themselves were also scrutinised and many fell short of what was required by the regulations in place at the time.

Not long after these dismissals some large institutions (particularly in the financial services industry) beat an elegant retreat in the face of public opprobrium and wisely offered to reinstate or re-employ those employees who had been dismissed. Other employers unfortunately refused to reinstate any employees during this time, and steadfastly clung to their rigid positions despite the fact that by this time Covid-19 had, in most cases, become little more than a bad memory of a time that we would all rather forget. 

What of labour court jurisprudence?

The labour court has yet to deliver judgment on whether the dismissal of an employee for their failure to vaccinate is fair or not. Many employers have wisely decided not to roll the dice on this issue and have instead settled these disputes out of court. However, the labour court has found that the implementation of a policy that restricts access to an employer’s premises to employees who have been vaccinated or submit regular Covid-19 PCR tests is fair.

We do not know when the next pandemic will hit our shores again. With the most recent JN.1 variant of Covid-19 already causing alarm in Europe and the US, it may be sooner than we think. However, Covid-19 has provided us with lessons that employers must resist the temptation to act too quickly on the issue, and should properly weigh the risks involved.

Ultimately, the takeaway is that while the law may enable you to do something, it may not always be a good idea to invoke that measure in the workplace. The modern workplace, imbued with considerations of equity and fairness, requires employers to strike a fair balance between the operational and economic realities faced by them, and the right to be treated fairly.

• Coetzer is head of employment, Luthuli an executive, and Wingfield a senior associate, at Cowan-Harper-Madikizela.