Mandatory Vaccination in the Workplace

As the pandemic rages on, with no end in sight, the vaccine debate also surges ahead. From civil liberties to body autonomy to public responsibility in shared spaces to lowering the risk of infection for the vulnerable – passionate opinions and thoughts have been expressed.

With the return to onsite work environments, a move towards a tiny semblance of normality, a mandatory vaccine is likely to be justified in situations where employees are exposed to the public.

The Department of Employment and Labour released an Amended Consolidated Direction on Occupational Health and Safety measures in certain workplaces (Directions) published in Government Gazette No. 44700 on 11 June 2021.

According to the Directions, employers who intend to introduce mandatory vaccinations must:-

  1. Undertake to do a risk assessment taking into account its operational requirements and working environment to identify employees who may be at risk of transmitting the virus or alternatively if the employee may be more vulnerable to the virus due to health factors;
  1. Develop a vaccination plan to include measures set out in the Guidelines for mandatory vaccination which must:
    2.1 Include the process by which the obligations in terms of the Direction are going to be complied with
    2.2 Consider an employee’s constitutional right to bodily integrity, as well as the freedom of religion, belief, and opinion

Employers had until the 2nd of July 2021 to undertake a risk assessment and to identify employees that would be vaccinated.

Should employees be reluctant in taking the vaccine, the employer should build confidence by:

  1. Discussing the vaccination policies and communicating transparency with employees regarding the myths and facts relating to the vaccine;
  2. Create a communication plan. Share key messages with employees through breakroom posters, emails, and other channels. Emphasize the benefits of protecting themselves, their families, co-workers, and community;
  3. Host specialist Q&A sessions or invite doctors or public health experts to visit your workplace and talk to the employees regarding vaccination options.

The most controversial issue in relation to mandatory vaccination appears to be the extent to which employees may rely on their constitutional rights not to be vaccinated, in particular freedom of religion, belief or opinion. The Directions however avoid stipulating any consequences that may arise if employees refuse to be vaccinated in circumstances where mandatory vaccination policies have been implemented. Annexure C to the Directions suggests an adjustment to the job or work environment, including working from home or working outside normal working hours. A mandatory testing requirement can also be put in place in appropriate circumstances.

It is imperative to note that the employer does not have to adopt a vaccination policy that requires all of its employees to be vaccinated, and the policy can require only those employees who are at risk to be vaccinated. Consequences of the refusal to get the vaccine should be determined on a case-by-case basis.

Contributor: Hafsa Rajub
Designation: Associate
Department: Litigation
Email: Hafsa@pgpslaw.co.za

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