THE STANCE REGARDING THE VACCINATION FOR (COVID-19): EMPLOYERS AND EMPLOYEES
The first shipment of (COVID-19) vaccinations has arrived. The president stressed that no person will be forced to take the vaccine.
“But I want to be clear. Nobody will be forced to take this vaccine. Nobody will be forbidden from traveling, from enrolling at school, or from taking part in any public activity if they have not been vaccinated.” Cyril Ramaphosa 01 February 2021.
The below will (thus far) provide you with an overview re the same:
MANDATORY VACCINATION LEGISLATION
- Is there legislation that makes vaccination mandatory? No.
- Will there be legislation making vaccination mandatory? Probably not – TBA.
DISMISS AND DISCIPLINE
- Can you dismiss an employee for not being or refusing to be vaccinated? No.,
- Can you discipline and dismiss an employee who will not obey your safety protocols? Yes, but it must be within your Disciplinary Code.
- Is dismissal or exclusion of an employee who refuses a vaccination from the workplace unfair discrimination? Yes,
- Can you give a deadline for an employee to be vaccinated? No.
- Can you refuse to employ somebody because they are not vaccinated or refuse to be vaccinated? No.
ACCESS TO THE WORKPLACE
- Can you refuse to allow an employee access to the workplace if they are not vaccinated? No.
WORKING FROM HOME
- Can you instruct a non-vaccinated employee to work from home? Yes (personal risk profile related), but if the instruction is based on differentiation of vaccinated and non-vaccinated employees, it could be a form of indirect discrimination.
- When can the employer force vaccination? The actual inherent requirements of the job may justify vaccination, for instance, the health industry or those caring for the sick and elderly in care homes- further details TBA.
- Can you insist in vaccination of the job requires international travel and vaccination is requires? Yes, but the employee cannot be forced. Vaccination is only by consent. You would need to consider accommodating that employee or consider the employee’s ability to carry out their job.
- Can you insist on mandatory vaccination for some jobs, but not others? Yes, the inherent requirements of the job will dictate, but this will need to be carefully approached – further details TBA.
DISCLOSING VACCINATION STATUS
- Can you demand that employees disclose whether or not they are vaccinated? No.
- Does the employee have to tell you if they are not vaccinated? No
- • Does the employee have to tell you why they refuse to get vaccinated? No.
- Do you have to have a Vaccination Policy? Not necessarily, but if you are going to insist on vaccinations you would need to consult and introduce a Vaccination Policy to the workplace to regulate the mandatory vaccinations, but do not fall foul of the law.
OCCUPATIONAL HEALTH AND SAFETY
- Does the Occupational Health and Safety Act not require employers to ensure the workplace is safe? Yes, it does, as far as is reasonably practical. Mandating vaccinations goes further than ensuring the safety of the workplace.
VISORS AND SUBCONTRACTORS
- Can you insist that visitors and subcontractors are vaccinated? No.
- Can you insist vulnerable employees are vaccinated? No, but your (COVID-19) precautions would continue: Possibility of working from home, additional (COVID-19) measures at the workplace.
EMPLOYEES WORKING WITH THE PUBLIC
- Can you insist that employees working with the public are vaccinated? No, but your (COVID-19) precautions would continue.
WARNING OF UNVACCINATED EMPLOYEES
- Can you warn visitors and employees that some people they may encounter are not vaccinated? No.
PAYING FOR THE VACCINATION
- Must the employer pay for vaccination? No, however, if there is a mandatory Vaccination Policy, the employer would probably – further details TBA.
- Is the employer responsible for side effects of the vaccine? No. It would be regulated by your sick leave provisions.
- Do you have to give time off for the vaccinations? No.
- Can you stop employees from entering the workplace if they present symptoms of (COVID-19)? Yes, as you have throughout lockdown.
WITHOUT BEING ABLE TO FORCE VACCINATION, WHAT CAN THE EMPLOYER DO?
- Encourage employees to be vaccinated.
- Provide information on the vaccination, and centers that provide vaccination.
- Possibly accommodating the vaccination through sick leave.
- Carry on doing what we have been doing throughout lockdown – keep your monitoring pro-active (temperatures, declarations, symptom checking, social distancing, wearing masks, sanitising, amongst others), regardless of whether a person is vaccinated or not.
- Keep the quarantine and self-isolation practices.
- Keep employees working from home, where possible.
- Ensure the workplace is (COVID-19) safe.
There is a legal risk if employers adopting workplace policies that require their employees to be vaccinated to prevent contracting or spreading (COVID-19), which include but are not limited to:
- The Labour Relations Act (LRA) prohibits dismissals that discriminate against employees based, inter alia, on their religion, conscience, belief, political opinion, or culture.
- The Employment Equity Act (LRA) protects employees against discriminatory conduct.
- The Employment Equity Act (LRA) also protects applicants for employment.
- The Employment Equity Act (LRA) prohibits employers from prejudicing an employee (or person seeking employment) for refusing to do something that the employer is not lawfully entitled to require them to do.
- The Constitution guarantees everyone the right to bodily integrity.
In closing, the vaccination program will start soon but will probably take the remainder of 2021 to complete.