On 11 June 2021, the Department of Employment and Labour issued an updated occupational health and safety directive which, among other things, permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines. Despite this recent update, employers are cautioned to ensure that they do not infringe upon an employee’s constitutional right to bodily integrity and religious freedoms and beliefs.

In terms of this latest directive, within 21 days from 11 June 2021, an employer must amend their workplace plan to include the following:

  • Whether they intend on making vaccinations mandatory;
  • Which categories of employees will be required to vaccinate;
  • The manner in which it will adhere to the directive issued by the Department of Employment and Labour;
  • The measures it will take to implement the vaccination of employees as and when vaccines become available;
  • Provide employees with paid time off to be vaccinated, provided an employee shows proof of vaccination.

A further requirement in terms of this latest directive is that employers must consult the relevant trade union or health and safety committee established in terms of the Occupational Health and Safety Act. Furthermore, the workplace vaccination policy must be made available for inspection by trade unions, the health and safety committee as well as an inspector.

In making decisions about the workplace plan, the directive requires employers to consider factors such as age of the workforce, existing comorbidities of employees, risk of transmission due to their job roles  and whether there are any existing collective agreements in place on the subject.

The directive further places an onus on the employer to educate and raise awareness among employees with regards to, among others, the nature, benefits and potential risks associated with the vaccine. 

An employer must be aware of the following essentials when implementing their mandatory workplace vaccination policy:

  • Issuing of a notice to employees that inform them that they must be vaccinated as and when vaccines become available.
  • A reminder of an employee’s right to refuse vaccination on a constitutional or medical ground.
  • Reminder to the employee that they have the opportunity to consult with a trade union representative, a worker representative or a representative of the health and safety committee.
  • Where reasonably practically possible, arrangements on how employees will be transported to vaccination sites.

An important point is that the directive requires employers to pay for an employee’s sick leave in terms of Section 22 of the Basic Conditions of Employment Act should they experience side effects after being vaccinated. Employees will not be required to submit further medical certificates as long as they are able to prove that they were vaccinated. The directive does however allow employers to make a claim on behalf of the employee in terms of the Compensation for Occupational Injuries and Diseases Act, thus making it a viable alternative for employers wanting to reduce the potential financial burden of paying sick leave.

The introduction of a mandatory vaccination policy at the workplace will potentially be met with resistance by certain employees by virtue of a medical, constitutional or other ground. Refusals are most likely going to be common and should be dealt with in the following manner:

  • Establish on what grounds the employee is refusing.
  • Counsel an employee and allow them to confer with a trade union representative, a worker representative or a member of the health and safety committee so as to come to a resolution.
  • Refer the employee for further medical evaluation where the objection is on medical grounds. This will however require the consent of the employee.
  • If necessary, take steps to reasonably accommodate the employee by making amendments to their role or work environment in one or more of the following ways: allow them to work from home where possible, require that they self-isolate in the workplace; or require the employee to wear an N95 mask while in the workplace.

Employers that intend on introducing a mandatory workplace vaccination policy should take particular cognisance of the latest directive issued by the Department of Employment and Labour on 11 June 2021. Invictus and its strategic partners are able to assist with the appropriate policies and procedures to manage compliance with the directive in the workplace.

Invictus Group is able to assist companies with the necessary advice so that all procedures and legalities are complied with. Contact Invictus Group on 0861 737 263 for us to assist you.