COVID-19 Vaccinations in the Workplace as an Operational Requirement and adherence to the Occupational Health and Safety Act.
An employer who wishes to move towards a formal COVID-19 Vaccination Management Policy should follow the above process.
First take decision to implement the legal requirement with such a management policy based on the nature and operational requirements of the workplace and business. Secondly, engage and consult with the industry trade union about the decision(s) taken based on the nature and operational requirements of the workplace and business. Thirdly, conduct a COVID-19 risk assessment to determine and evaluate the risk(s) that COVID-19 poses to the business and its operations. Based on the outcome of the risk assessment, decide whether it requires mandatory, voluntary, or a blended (mandatory & voluntary) policy to manage the pandemic in the workplace based on the Occupational Health and Safety Act, according to Section 8, the employer must, where reasonably practicable, provide and maintain a safe, healthy work environment that is without risk to employees. It is the duty of every employee at work to take reasonable care for the health and safety for himself as well as other persons. Every worker is in other words responsible to take care of his or her own health and safety. The unsafe acts of the worker may not negatively impact or endanger others. Other persons normally include co-workers, contractors, visitors and even the public.
The employee is also duty bound to co-operate with the employer where the OHS Act imposes a duty or requirement to be performed or complied with. Workers are legally bound to comply with the prescriptions of the OHS Act. Employees should always carry out and obey lawful orders and obey the health and safety rules and procedures laid down by the employer. Fourthly, the outcome and decision derived from the risk assessment needs to be communicated to the workforce, future employees/workers, as well as suppliers and temporary employment services with sufficient notice for compliance must be provided. Once this has been communicated, then lastly, the employer must attend to exemptions made by employees, suppliers, and temporary employment services.
Employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.
Exemption applications can be based on an employee’s Constitutional grounds insofar as, the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine.
Should an investigation determine a valid exemption application, employers should keep in mind that a dismissal based on operational requirements are always the last resort. An alternative to a dismissal would be to require of an employee to provide the employer with a negative PCR test every 72 hours. The cost of such a PCR test could either be carried by the employer or employee or split equally.
This will be subject to negotiation. The employer could advise the employee that as an alternative to a dismissal, the employee is required not only to provide a negative PCR test every 72 hours, but also responsible for the cost of such a test.
Employers are welcome to contact the EOHCB to purchase our Vaccination Toolkit which provides for a Mandatory, Voluntary, and Blended COVID-19 Vaccination Management Policy and risk assessment(s) associated.
For inquiries, please contact use via: admin@eohcb.com.
Annexure C of the Occupational Health and Safety Directive
Issued in June 2021
Guidelines if an employer makes COVID-19 Vaccinations Mandatory
These guidelines are intended to guide employers, employer organisations, employees, trade unions, conciliators, arbitrators and the courts in determining the fairness of a mandatory vaccination policy and its implementation. These guidelines deal with the key aspects of a policy requiring mandatory vaccination in the workplace. The guidelines are stated generally and departures from them may be justified in proper circumstance.
These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions. The key principle of these guidelines is that employers and employees must treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.
Subject to any applicable collective agreement, a plan as contemplated above that requires all employees identified in terms of that Direction to be vaccinated in accordance with the national COVID-19 vaccination roll out plan, should provide the following:
• Every employee identified by the employer as outlined above must be notified of –
(a) the obligation to be vaccinated as and when a vaccination becomes available for that employee;
(b) the right of an employee to refuse to be vaccinated on constitutional or medical grounds;
(c) the opportunity for the employee, at the employee’s request, to consult a health and safety representative or a worker representative or trade union official.
Constitutional grounds – are the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution of South Africa.
Medical grounds – for the contra-indication of vaccination include: a severe allergic reaction after a previous dose or to a component of the COVID-19 vaccine; or an immediate allergic reaction of any severity to a previous dose or known allergy to a component of the vaccine. A blood clotting problem, may also be contraindicated before or after receiving the first dose of a two-dose vaccine. Evidence is showing that being vaccinated during pregnancy is safe.
In addition to paid time off (refer Sick Pay Fund or UIF) for an employee who is scheduled for a vaccine during ordinary working hours, if necessary, transport to and from the vaccination site allocated should be provided by the employer.
Should an employee have a severe reaction to the COVID-19 vaccine and the employee has exhausted all sick leave and Unemployment Insurance Fund illness benefit, the employer should give the employee paid time off to recover. The Compensation Fund for Occupational Injuries and Diseases will also cover an employee who were subjected to a mandatory vaccination policy in the event of severe reaction to the COVID-19 vaccine.
If an employee refuses to be vaccinated on any constitutional or medical ground, the employer should:
• Counsel the employee and if required, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
• Refer for further medical evaluation should there be a medical contraindication for vaccination;
• If necessary, take steps to reasonably accommodate the employee in a position that does not require to be vaccinated.
Reasonable accommodation – means any modification or adjustment to a job or the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act, 1999. This might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask.
If an employer cannot reasonably accommodate an employee who refuses or fails to be vaccinated, an employer may only fairly dismiss the employee if it can establish that it is on grounds of operational requirements in compliance with section 189 of the Labour Relations Act and the provisions of this Direction. A dismissal is unfair if the reason for the dismissal is that the employee refuses to be vaccinated in accordance with the plan contemplated above unless the dismissal is operationally required and the employee cannot be reasonably accommodated.
Draft Compliance Map for COVID-19 Vaccination Checklist
Compliance map - COVID-19 Vaccination Checklist
Remember that you need to complete all these actions
Prepare a risk assessment template per Area to be assessed. You will also need a list of all employees per Area indicating those who are over 60, those with comorbidities, those who use public transport and those who live on the premises in workplace accommodation.
Conduct the in-loco inspection (preferably with the OHS representative and thereafter complete the Risk Assessment Area matrix by answering draft questions relating to sources of hazard (increased risk for exposure to COVID-19) / controls to be considered
Make a preliminary observation as to whether mandatory COVID-19 vaccination should be applied to the entire Area, part thereof, all employees or specific employees.
Draft a proposed COVID-19 mandatory or voluntary vaccination policy and plan and ensure that you have covered all the "Employer Support to Employees" areas identified.
Consult with a representative trade union.
Consult with the OHS committee or if no committee exists with the OHS representative.
Make a final call on whether the COVID-19 vaccinations should be mandatory or voluntary by incorporating feedback from the consultations with the parties referred to in points 5 and 6 above.
Notify employees of the outcome and then specifically engage with the identified employees for mandatory vaccinations and advise them of the findings and that they have the right not to be vaccinated on the three grounds identified and that they can make representations in that regard to HR or the employer.
Deal with any objections/ applications for exemption by offering the employee(s) an opportunity to consult with the union representative if applicable, the OHS representative or consider possible medical evaluation for cases with alleged medical predispositions with the vaccinations.
Support employees by, inter alia, assisting them to register on the EVDS and enabling them to get vaccinated via paid time off and the like.
Deal with the employees who applied for exemption by looking at reasonable accommodation and ultimately if there are no alternatives, dismissal for operational requirements.
For record purposes, the EOHCB wishes to express our support and advocacy for vaccinations in workplaces. Due to the nature of our industry and the risk of exposure to COVID-19, vaccination against COVID-19 is of utmost importance, not only to protect public health imperatives, but to improve and sustain economic recovery and growth within our industry.
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