While the awards have predictably spurred considerable (and often emotional) debate, it is difficult to level any criticism against them in the absence of considering what transpired at those arbitrations. That may be the task of the Labour Court in due course if the awards are reviewed by the unsuccessful employees.
The CCMA is not a court of law and its pronouncements on the issue of mandatory vaccinations are not final. The outcomes arrived at in the two awards do not create an immutable rule regarding the fairness of such dismissals.
The power of an employer to impose a mandatory vaccination policy is sourced in the Amended Consolidated Direction on Occupational Health & Safety Measures in certain workplaces (“the Direction”) which was published by the Minister of Employment & Labour on 11 June 2021. The Direction requires an employer to identify, as part of a risk assessment and their Covid Workplace Plan, employees who, by virtue of their risk of transmission through their work or their risk for severe Covid-19 disease or death due to their age or comorbidities, ‘must be vaccinated’.
Employers are thus relatively free to identify which employees they believe should be vaccinated, subject to the condition that this must be preceded by an assessment of both its operations and its workforce.
The Direction, therefore, does not, in our view, contemplate a blanket approach to mandatory workplace vaccination and employers should not adopt such policies simply for that reason. It is likely that the risk assessments conducted by employers will be scrutinised and employers may find themselves in the soup if they have failed to properly justify the imposition of a mandatory vaccination policy at their workplaces. The risk assessment is a vital component of this determination.
Employers often rely, understandably, on the negative effects that Covid has had on their businesses, such as high rates of sick leave and operational downtime. However, there are a number of factors, both macro and micro, which would need to be assessed before implementing a mandatory vaccination policy. While there may be compelling reasons to require vaccination for employees who deal with members of the public or who work in confined, poorly ventilated spaces, it may not be so easy to justify the operational need for white-collar workers to be vaccinated, especially if they have been able to work remotely for the last two years. One need look only at the dramatic decline in passenger numbers on the Gautrain since the pandemic to gain some understanding of the extent to which remote working has been adopted by employers.
The enforcement of a mandatory vaccination policy at the workplace is also likely to become more difficult to justify once the requirement for isolating is dispensed with, and employers are not faced with the burden of empty workplaces each time a possible exposure to the virus occurs. Some scientists have also suggested that the severity of future strains of the virus may taper off. Once the state of disaster is lifted, it stands to reason that any regulations promulgated during and applicable to it would also fall by the wayside – including the controversial Direction.
Importantly, employers are not obligated to guarantee a safe working environment or make it foolproof. They are only required, in terms of sections 8 and 9 of the Occupational Health and Safety Act, to take reasonably practicable steps to provide and maintain one. A compelling case could be made that the measures which employers are already required to have in place, such as the use of hand sanitizers, face masks, social distancing and remote working are ‘reasonably practicable’ and thus sufficient to comply with their obligations. Why more is required will need to be justified by employers.
If employers are able to clear these hurdles and justify the imposition of a mandatory vaccination policy, they will then need to consider what to do with employees who refuse to be vaccinated. The Direction envisages an ‘exemption’ procedure, where employees may object to being vaccinated on either medical or constitutional grounds.
While this is all good and well, raising such an objection (whether valid or invalid) still requires the employer to take steps to reasonably accommodate such employees. The Direction indicates that such a process may require a ‘modification or adjustment to a job or the working environment’ of the employee. An employer will of course need to take the same steps in respect of unvaccinated employees who have not raised such objections and there is thus, in our view, no special status conferred on employees who raise the objections envisaged by the Direction.
The concept of ‘reasonable accommodation’ is not new in our law, and the Direction specifically incorporates the relevant provisions of the Code of Good Practice: Employment of People with Disabilities, issued under the Employment Equity Act. The limits of ‘reasonable accommodation’ are imprecise, but the duty to reasonably accommodate an employee is not unqualified. Our Courts have held that employers should not be made to suffer ‘undue hardship’, and that anything other than a minor cost involved in accommodating an employee may qualify as precisely that.
Importantly, the Code of Good Practice referenced by the Direction explicitly permits an employer to dismiss an employee where it cannot be reasonably expected to accommodate them. It is difficult then to quibble with the proposition that employees who refuse to be vaccinated may find themselves on the wrong end of a dismissal at some stage, provided that a properly conceived mandatory vaccination policy has been implemented.
The area of mandatory vaccination policies is a minefield and employers may feel like the issue is a lot like herding cats. Even if employers comply with the requirements of the Direction and the CCMA agrees with the approaches adopted by them, the effects on workplace morale, the loss of key employees, and the disruption which polarisation of opinion may cause are issues which employers will also need to ponder. It is entirely possible that conflicting arbitration awards may emerge and this will only exacerbate their headaches.
As employers agonise over the appropriate approach to adopt, the issue of workplace safety continues to loom large in the debate. Whether employers have done enough (or too much) to provide a safe workplace for their employees will depend on the facts of the matter. Employers must, however, understand the risks involved, plan accordingly and exhibit the necessary flexibility in relation to the policy choices.
(as published on the Business Day website on 2 February 2022)