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By Kate Collier, Nivaani Moodley and Jenna Atkinson, Webber Wentzel
All employers in South Africa have a legal obligation to, as far as reasonably practicable, provide their employees with a workplace that is safe and without risk to the health of his employees.
The Covid-19 pandemic has highlighted this obligation, and the measures required of employers, cannot only be seen determined with reference solely to inward factors and hazards caused by work. The Labour Court1 has found that “there is no bright line between public health and occupational health…” and that “public health concerns the entire population and occupational health a subset of that population”. Following from this, employers are equally required to consider external public health hazards and their impact on the workplace and, as far as reasonably practicable, put measures in place to prevent the spread and transmission of disease in those workplaces.
Employers are, and have been, required to specifically consider the hazard of Covid-19 and assess and control the risks associated with the disease, in their workplaces and to put measures in place to safeguard the health of their employees. These measures include the minimum statutory obligations of mask wearing, sanitising, ventilation etc., but also employers may well be required to go beyond these measures based on their identified hazards and the measures that would be considered reasonable to mitigate identified risks. Employers must equally consider the full conspectus of employee health (including mental health, ergonomics and physical health) and safety.
The specific regulations dealing with occupational health and safety related to Covid-19 in workplaces, the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces was amended in June 2021. The amended OHS Directive requires employers consider the role Covid-19 vaccination as part of its risk assessment processes and, through this assessment, determine whether a policy requiring mandatory vaccination is necessary. The risk assessment considers the legal duties to safeguard employee health and safety together with considerations of the operational requirements of the employer and where it indicates as necessary, employers are legally permitted to implement policies requiring that all employees be vaccinated against Covid-19.
However, even though an employer may implement a mandatory Covid-19 vaccination policy, an employee retains the right to refuse the vaccination on any constitutional or medical ground. Where an employee refuses vaccination, the obligation shifts to the employer to, amongst other things, reasonably accommodate that employee.
Where an employee refuses to be vaccinated, the OHS Directive states that an employer should counsel the employee and, if requested, allow the employee to seek guidance from either a health and safety representative, worker representative or trade union official, refer the employee for further medical evaluation or advice and, if necessary, take steps to reasonably accommodate that employee.
While such a policy does, naturally, limit the choices or rights of employees, this would be rational, fair and justifiable where the risk assessment has been thoroughly performed by the employer and the policy is implemented to protect employee health and safety. Furthermore, from a constitutional perspective, no right in the Bill of Rights is absolute. The South African Constitution specifically provides for the limitation of rights, where such limitation is reasonable and justifiable – this must be determined based on the facts within each employer.
Importantly, the recently gazetted notice on compensation for Covid-19 vaccination side effects has confirmed that the Compensation Fund will cover employees for injuries, illness or death as a result of receiving a Covid-19 vaccine when the employer requires employees to be vaccinated as an inherent requirement of employment or where the need of employees to be vaccinated is based on the risk assessment performed by the employer.
While this specific inclusion into the ambit of the Compensation for Occupational Injuries and Diseases Act for Covid-19 related injuries, illness or death will provide some level of comfort to employers considering mandatory vaccination; the notice specifically reiterates that employers may not vaccinate employees against their will – essentially reiterating the right of employees to refuse vaccination as set out in the OHS Direction.
The key question then for employers in implementing mandatory Covid-19 vaccination policies is rather then one of reasonable accommodation and the steps to be followed when reasonable accommodation cannot be achieved, rather than whether vaccination polices are permitted.
[1] Association of Mineworkers and Construction Union v Minister of Mineral Resources and Others.
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