COVID-19 legislation has proven to be a moving target, ranging from unclear TERS application criteria to employers’ rights to place employees on paid annual leave during lockdown periods. In addition, we are yet to establish the totality of future case law that will undoubtedly unfold in the coming years.
The recent Labour Court ruling in the Eskort Limited case provided much-needed confirmation that non-compliance with COVID-19 protocols is deemed serious and dismissible, and provided welcome clarity on the interpretation of the law as the pandemic continues to wreak havoc.
In the case, the Labour Court in Johannesburg overturned a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that an employee be reinstated with a final written warning after he returned to work despite knowing he had tested positive for COVID-19.
Judge Edwin Tlhotlhalemaje stressed that both employers and employees seriously consider the health and safety warnings, protocols, policies, and procedures related to COVID-19.
“They are indicative of the need for more to be done at both the workplace and in our communities, ensuring that employers, employees and the general populace are sensitised to the realities of this pandemic, and to further reinforce the obligations of both employers and employees in the face of it, or event of an exposure,” Tlhotlhalemaje wrote in his judgment.
We already know that employees are permitted to refuse the mandatory vaccination policy for any grounds that impede their constitutional rights, including the right to bodily integrity and religious beliefs, both of which currently seem to headline employee concerns.
On 11 June 2021, the government gazetted the updated consolidated direction on occupational health and safety measures, which now provides employers with the right to consider a mandatory workplace vaccination policy.
Key issues which have to be considered for a mandatory vaccination policy, in our opinion, are:
• Your operational requirements
• Your company’s risk category (high or low risk)
• Your COVID-19 risk assessment and your ability to keep employees safe
• Your business risk in relation to a mandatory vaccination policy risks would include:
- Providing sick leave for any adverse side effects of the vaccine
- Providing time off to obtain the vaccine
- Legal liability related to occupational injuries
The past 15 months have exposed employees and employers to unimaginable uncertainty regarding their livelihood. Employers should consult with stakeholders, employees, vulnerable persons and workplace health and safety committees. This will equip both the company and employees with information that would drive business decisions.
Employers who intend to implement a compulsory vaccination policy in the workplace must include this in their risk assessment required in terms of the consolidated OHS direction. Deciding on a mandatory vaccination policy will require a delicate balancing act between meeting their statutory obligations and ensuring the rights of the employees.
A key consideration is that each employer must ensure a safe working environment that does not pose a risk to the health of its employees and other persons that may be directly affected by its activities.
Employers must prioritise and identify employees whose work poses a risk of transmission or risk of severe COVID-19 disease or death due to their age or comorbidities. They should risk-rate each employee in terms of their age, comorbidities their interaction with other persons, which would provide directions in terms of who must be vaccinated.
The department of labour advised that a compulsory vaccination policy should be in line with the government’s vaccine rollout plan, and an employee can only be required to be inoculated once they are eligible under the programme. The employee must first be registered on the electronic vaccination data system and given a date for vaccination.
The information obtained in the article is published purely for information purposes and is not intended to provide legal advice. Please contact our Labour Law experts should you require a legal opinion or assistance with your COVID-19 compliance. https://nova-humancapital.co.za/solutions/labour-law-offerings/