The best approach to be adopted by employers on “compulsory” vaccinations for COVID-19

Introduction

Clients have raised queries on whether they can order or require their employees to be vaccinated for Covid-19.

Various articles have been published and statements made on the issue of compulsory vaccinations for Covid-19. In our view, too much emphasis has been placed on compulsory vaccinations for Covid-19 at the workplace.  It is not a requirement that can be posed seriously for the reasons explained in this newsletter.  It has even been suggested that employers could utilize a lock-out in order to compel employees to take the vaccine.  In our view, this is wholly incorrect and a lock-out would constitute an unlawful demand.

Subject to certain exceptions such as yellow fever inoculations, South Africa does not have legislation which requires compulsory vaccinations against various diseases or viruses.

The pandemic is a national issue and accordingly compulsory vaccinations when required and if at all, must be dealt with by the State. Should employers unilaterally impose compulsory vaccinations at company level this could have serious medical, health, personal rights and employment law consequences.

If there is any doubt on this issue we mention that President C Ramaphosa during his address on 1 February 2021 stated that the State would not be implementing compulsory vaccinations for Covid-19.

The issue of vaccinations raises important issues which must be considered.

Compulsory Vaccinations

Employers have a duty to maintain a safe and healthy work environment in terms of the Occupational Health and Safety Act 85 of 1993 as amended (“OHSA”) and a duty of care in terms of the common law. This duty includes taking appropriate and reasonable steps in order to curb the pandemic and contain the spread of Covid-19 at the workplace.  In this regard, the Courts have held that employers are not obliged to guarantee the safety of their employees but must act reasonably by providing a safe working environment for their employees.

Encourage Vaccinations

The critical issue is that employers should strongly encourage employees to be vaccinated on a voluntary basis by utilising industrial relations techniques.

It would be preferable for employers to consult employees on vaccinations and to discuss how the issue should be dealt with. As many employers are required to establish a health and safety committee in terms of OHSA, it would be preferable to consult with that committee on the issue on an urgent basis with the view to discussing a proposed policy on critical diseases and how health and safety should be implemented in that context.

As compulsory vaccinations at the workplace would be unlawful in respect of employees, the costs of the vaccinations do not arise in that context. Employees however may raise the issue of the cost of voluntary vaccinations.  Where it is a voluntary process there is no legal obligation for the employer to pay for the cost.  The cost should be paid by the State (a reason why tax is paid).  The guidelines on Covid-19 vaccinations are late and are awaited.

It should be noted that employees based in South Africa who wish to enter another country on business for the employer normally have to take a Covid-19 test. It is possible that the Covid-19 vaccinations could become mandatory in order to enter countries and accordingly entrance will be barred if the vaccine has not been taken.  No similar restrictions have as yet been implemented in South Africa.

Critical Diseases Policy

The Critical Diseases Policy of the employer should encourage employees to undergo vaccinations subject to certain exceptions such as medical and religious grounds. Employers should embark upon a communications exercise with a view to explaining the benefits of the vaccination process, possible side effects, dispelling false news about vaccines and dealing with myths and superstitions.  Absolute statements however should not be made as there is still some uncertainty about the efficacy of the vaccines and the employer must act cautiously.  Personal information should be protected in terms of the POPI Act.

Employers would probably not be entitled to prohibit employees who have declined vaccinations for Covid-19 from entering the workplace but this would depend on the emerging circumstances in relation to Covid-19. This will require further discussion and the scientific evidence on the transmissibility of the virus by those who have been vaccinated will need to be considered.

There is a risk that employees who have contracted Covid-19 at the workplace could sue their employer and fellow employees for damages where the latter parties were not vaccinated. Causation would become a central issue in this aspect.  Would the ill employee be able to prove that another employee caused him/her to contract the virus?  Currently, this would be almost impossible to establish.  A breach of the protocols could be a factor but vaccinations are neither a protocol nor a legal requirement to enter the workplace.  The Compensation for Occupational Injuries and Diseases Act 13 of 1993, as amended would of course also provide employers with some protection and possibly exclude their liability.

Conclusion

Employers should create an enabling environment at the workplace which encourages employees to be vaccinated for Covid-19. We anticipate that the majority of the employees will be vaccinated and this will encourage other employees to be vaccinated.

Where an employee (see the comments of a member of the provincial legislature) makes ignorant, false or outrageous comments about vaccinations they should be counselled and if necessary, charged in terms of the Disciplinary Code. They should also be referred to the employer’s policy on critical diseases.  We believe that it is necessary to prepare and publish a policy on the issue.

Many questions arise on the approach which should be adopted. Wisdom must be exercised and this requires careful reflection and research where necessary.

If you require further advice on the subject or assistance with the Critical Diseases Policy, please contact us. Please remember to amend your Disciplinary Codes in order to include protocols for critical diseases including Covid-19.

Written by Rod Harper and Jessica Fox
of Cowan-Harper-Madikizela Attorneys

Rod Harper of Cowan-Harper-Madikizela Attorneys
Jessica Fox for Cowan-Harper-Madikizela Attorneys