The Department of Employment and Labour has issued an updated occupational health and safety direction which, among other things, expressly permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines.
The Minister of Employment and Labour has gazetted a consolidated Direction on Occupational Health and Safety Measures in certain workplaces. These regulations are effective from the 11th June 2021 and has to be followed with immediate effect. It should be noted that vulnerable employees mean any employee with known or disclosed health issues or comorbidities or any other condition that may place the employee at a higher risk of complications or death than other employees if infected with Covid 19. Likewise, any employee above the age of sixty who is at a higher risk of severe Covid 19 disease or death if infected could be deemed to be vulnerable. A worker means any person who works in an employer’s workplace including an employee of the employer or contractor or self-employed person or volunteer. The workplace will mean any premises or place where the person performs work. The Directions apply for the duration of the National State of Disaster unless otherwise indicated. Every employer must undertake a risk assessment to give effect to the minimum measures required by these Directions taking into account the specific circumstances of the workplace and the requirements of the occupational health and safety regulations. Within twenty one days of the coming into force of the amendment to this direction, the employer must make it clear whether it intends to make vaccinations mandatory and, if so, to identify those employees who by virtue of the risk of transmission through their work or their risk for severe Covid 19 disease or death due to their age or comorbidities that must be vaccinated. In essence, certain workplaces will make vaccinations mandatory in certain circumstances. There will be risk assessments and the employer must develop a plan or amend their existing plan in line with the new regulations. This plan must outline the protective measures in place for the phased return of its employees. It is now mandatory to consult on the risk assessment and plan with any representative trade union and any health and safety committee established in terms of the Occupational Health and Safety Act (OHSA). This plan must be made available for inspection by an inspector. The plan will include a list of the employees permitted to return to work and those who are required to work from home. It will also identify vulnerable employees. Employers have to include ways of minimising the number of workers at the workplace at any one time and there must be measures for daily screening of employees and the screening of clients, contractors and visitors to the workplace. There must be a procedure to resolve any issue that may arise from the exercise. It should be noted that small businesses i.e. employers with ten employees or less are exempt from some of the regulations. Certain employees may refuse to perform any work if circumstances arise which, with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to Covid 19 infection. The employee who has refused to perform work must as soon as reasonably practicable, notify the employer, either personally or through a health and safety representative, of the refusal and the reason for the refusal. Thereafter every employer who has been notified must consult with the compliance officer and the health and safety committee. They must try and resolve the matter internally but if it cannot be done, they need to notify an inspector of the issue within twenty four hours and advise the employee and all other parties involved in resolving the issue that an inspector has been notified. If there is dispute as to whether the employee has to return to work or note, the employee may refer the dispute to the CCMA in terms of Section 191 of the LRA. If the employer has complied with all the directions and the employee still refused to return to work the employer might withhold salary and the employee is then obliged to declare the dispute.
The employer must take into account the rights of the employees to bodily integrity and the right of freedom of religion, belief and opinion. These rights are protected by the Constitution. The employee will raise any objection to taking the vaccination and this objection must be tested in terms of the rights of the employer and the employee. If the employer employs more than fifty employees that employer must submit a record of its risk assessment together with its plan and policy to the Health and Safety Committee, they must retain a copy of the risk assessment and make a copy available to health and safety representatives appointed in terms of OSHA and the inspectors of the department. Interestingly an employer must require employees to disclose whether they have any of the health issues, comorbidities or conditions contemplated in the definition of vulnerable employees and thereafter take special measures to mitigate the risk. In essence, the employer must notify its employees that if they are sick or have symptoms associated with Covid 19 they must not come to work and must take paid sick leave in terms of the Basic Conditions of Employment Act. The employer will appoint a manager as a Covid 19 compliance officer to oversee the implementation of the plan as outlined. The manager who is the compliance officer will consult with workplace representatives and employees and consult with the committee on the nature of any hazards at the workplace. Businesses have to take measures to minimise contact between workers as well as between workers and members of the public. They must provide workers with information that raises awareness in any form or manner, including if reasonable practicable, leaflets and notices placed in conspicuous places in the workplace informing workers of the dangers of the virus and ways and means of preventing the transmission of that virus. Once again, if any worker has been diagnosed with Covid 19 the employer must inform the National Institute of Occupational Health in accordance with the National Department of Health guidelines.