To Vax Or Not To Vax – An Employer’s Covid Conundrum

At present, the world seems to be sitting on a pressure-cooker. As pro-vaccine and anti-vaccine proponents take to social media, radio, TV, and whichever soapbox they can get their hands on to extol the virtues of their own viewpoint, whilst lamenting the ignorance of these people who hold different and opposing views, employers must decide on their company’s vaccine policy.

Unlike global pandemics in the past, the Covid-19 vaccination debate seems is exacerbated by the vast plethora of information (often false) with which people are bombarded daily.

Unfortunately, governments worldwide simply do not know how to handle the balancing act between upholding personal rights of the individual to elect whether to get vaccinated, and the rights of the community to having Covid-19 eradicated, and if not eradicated, diminished. The South African government is no exception, and by means of the regulations signed by Minister of Employment and Labour,  TW Nxesi on 25 May 2021, they made one message very clear, namely, that the private sector will have to deal with the big question of whether or not vaccinations should be mandatory.

In terms of the regulations, which can be found here, various obligations are imposed on employers specifically relating to Covid-19 operating procedures, and vaccinations.

This article will aim to deal with some of the key issues raised in the regulations.

WHO NEEDS TO COMPLY WITH THE REGULATIONS?

All employers must, to some extent, comply with the obligations imposed by the regulations.

A higher measure of compliance is required from larger employers, whilst lesser compliance is required from smaller employers.

The regulations, as they stand now, basically impose the following requirements:

1. Employers with less than 10 employees.

Employers who have less than 10 employees must have a basic Covid – 19 policy, and must comply with the following obligations:

1. Have a basic plan for phasing in the return of its employees.

2. Arrange the workplace to ensure the employees are at least one and a half meters apart or place physical barriers between the employees to prevent possible transmission.

3. Ensure that employees that have Covid – 19 symptoms are not permitted to enter the workplace.

4. If an employee presents symptoms, immediately contact the relevant authorities for instructions and direct employees presenting such symptoms to act in accordance with those instructions.

5. Provide cloth masks or require an employee to wear some form of cloth covering their mouth and nose.

6. Provide each employee with hand-sanitizer, soap and clean water to wash their hands, and disinfectants to disinfect their workstations.

7. Ensure that each employee, while at work, washes with soap and sanitizes their hands.

8. Ensure that workstations are disinfected regularly, and

9. Take any other measures indicated by a risk assessment of the workplace.

 

Having regard to the wording of the regulations, it seems that employers with less than 10 employees are also be bound by the provisions of annexure C of the regulations, dealing with potential mandatory vaccinations.

2. Employers with more than 10 employees but less than 50 employees:

These employers must comply with all of the provisions contained in the regulations and must have a comprehensive Covid-19 policy in place.

3. Employers with more than 50 employees:

Employers with more than 50 employees must have a substantial and comprehensive Covid-19 policy, as well as complete a full risk assessment in terms of the regulations. The record of this risk assessment together with the employer’s plans and policies concerning the health and safety of its employees from Covid 19 infection must be provided to the employer’s health and safety committee.

Furthermore, a written copy of the risk assessment plan and policy must be retained, and such copy must be made available to health and safety representatives appointed in terms of OSHA and the inspectors of the department.

MANDATORY VACCINATIONS; ARE THEY A REALITY?

It would appear from the wording of annexure C to the regulations that the Minister envisages the possibility of mandatory vaccinations. To this end, paragraph 1 of annexure C reads as follows:

“These guidelines are intended to guide employers, employer organizations, employees, trade-unions, conciliators, arbitrators and the Courts in determining the fairness of mandatory vaccination policy and its implementation”

Therefore, it appears that mandatory vaccinations may be enforced by employers under certain circumstances. The writer holds the view that such discretion must be exercised fairly, and that employers should be slow to enforce mandatory vaccinations unless necessary. The encroachment on people’s rights is no laughing matter; nor is the balancing act between competing rights.

HOW SHOULD THE ISSUE OF MANDATORY VACCINATIONS IN THE WORKPLACE BE DEALT WITH?

Paragraph 4 of annexure C provides that employers and employees should treat each other with mutual respect. Furthermore, paragraph 4 sets out the balancing act that must be undertaken between public health imperatives, the Constitutional Rights of employees, and the efficient operation of the employer’s business.

It would therefore appear that, when matters relating to compulsory vaccinations land before a Court or a tribunal, that these are the 3 issues which the Minister suggests the Court and/or tribunal should consider. Whilst the balancing act between the 3 aspects cannot be faulted in principle, the practical implementation thereof will be tricky to say the least!

HOW SHOULD EMPLOYERS DEAL WITH IMPLEMENTING A MANDATORY VACCINATION POLICY?

Having regard to the (understandably) vague provisions of annexure C to the regulations, it seems that a 3-step process should be followed, namely

1. A risk assessment should be conducted.
2. A mandatory vaccination policy should be considered, based on the risk assessment; and
3. A policy should be developed outlining how employees who refuse to take the vaccine should be dealt with.

STEP 1 – RISK ASSESSMENT:

As we dealt with above, every employer must undertake a risk assessment of its business in terms of Section 3 of the Regulations. In terms of Section 3 of the Regulations, an employer must, when completing a risk assessment identify those employees who must be vaccinated. This is based on 2 factors namely:

1. Risk of transmission through their work (for example workers who work in large groups in enclosed spaces without ventilation); and

2. Employees who are at high-risk for serious Covid cases due to their age or co-morbidities.

This assessment constitutes a serious and extremely important exercise that must be undertaken by the employer.

STEP 2 – THE VACCINATION MANDATE

In terms of the regulations, an employer should notify those employees who they have identified for mandatory vaccination of

1. Their obligation to be vaccinated;

2. Their right to refuse vaccination on constitutional or medical grounds;

3. Their opportunity, at the employee’s request, to consult with a health and safety representative or a worker representative or trade union official.

It is clear from the wording of the regulations that an employee may refuse vaccination on constitutional or medical grounds. Such refusal, however, does not come without its own repercussions.

STEP 3 – CONSIDER WHAT WILL HAPPEN TO EMPLOYEES WHO REFUSE TO GET VACCINATED

Annexure C provides that if an employee refuses to be vaccinated on a constitutional or medical ground, the employee should

1. Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative, or trade union official;

2. Refer the employee for medical evaluation should there be a medical contra-indication for vaccination;

3. If necessary, take steps to accommodate the employee in a position that does not require vaccination.

In the event that an employer is not able to reasonably accommodate the employee in a position that does not require vaccination, it would appear that the employer would have to follow the process set out in Section 189 of the Labour Relations Act, otherwise known as retrenchment. This is obviously not a course of action which an employer should take lightly.

Conclusion

Unfortunately, unless and until case law regarding this issue has become readily available, there will be various differing opinions and speculation will be rife. In the interim, employers have no option but to take an approach based on their own common sense, and speculation by their legal representatives on how to tackle this conundrum.

If you need assistance in conducting your risk assessment, or in the implementation of a Covid-19 vaccination policy, contact us for more information.