When referring to the legislation governing Occupational Health and Safety, in particular, Section 8 – General duties of employers to their employees, an employer is required to provide and maintain, as far as reasonably possible, a working environment that is safe and without risk to the health of all employees. This means that employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated on medical and constitutional grounds. It is essential in terms of the Occupational Health and Safety directive that employers conduct a risk assessment before making vaccinations mandatory in the workplace.
This assessment includes taking into account the occupational requirements of the workplace, ensuring that it is safe and without risk to other employees. Should the employer decide it’s in the best interest of the company to make vaccinations mandatory, the employer should then identify which of the employees need to be vaccinated if they pose a risk of transmission in the workplace.
On the basis of the employer’s decision to make vaccinations mandatory, employees may be afforded the opportunity to work remotely until receiving the required vaccine. This creates a conundrum, what happens to employees after a company conducts a risk assessment and decides to make the vaccine mandatory – can the employee be dismissed on the grounds of occupational health and safety in the workplace?
The occupational health and safety directive does not provide a clear indication of what could happen to an employee who refuses to be vaccinated, and in the end, will come down to whether the company has followed proper procedure in terms of the risk assessment before coming to a conclusion on the employment of the employee going forward.
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