On 11 June 2021 the Minister of Employment & Labour published an amended Consolidated Direction on Occupational Health and Safety Measures in certain workplaces (“the Direction”). A copy of the Direction can be found here.

The Direction applies to all employers and workers in workplaces which are permitted to operate under the Covid-19 Regulations issued in terms of the Disaster Management Act 57 of 2002. Many of the issues dealt with in the Direction have, in accordance with the previous Direction, already been implemented by employers, particularly in relation to risk assessments and the preparation and implementation of a plan dealing with the various obligations set out in the Direction.

The Direction has, however, introduced the possibility of mandatory vaccination policies in the workplace.  In terms of paragraph 3 of the Direction an employer must, within 21 days of the coming into effect of the Direction, undertake a risk assessment to determine, inter alia, whether it intends to make vaccination mandatory or not. If so, it must identify those employees who should be vaccinated, taking into account sections 8 and 9 of the Occupational Health and Safety Act and the employer’s operational requirements. Employers would identify these employees based on (1) the risk of transmission through their work or (2) the risk of severe disease or death due to their age or comorbidities.

On the basis of this risk assessment, employers will be required to develop a plan or amend an existing one to deal with the additional obligations imposed by the Direction. The plan must deal with, inter alia, the measures that the employer intends to implement in regard to the vaccination of its employees. In particular, it should include the list of employees identified by the employer and an indication as to whether the employer intends to make vaccination mandatory as and when vaccines are available for those employees.

It is important to note that the employer must, when preparing the plan, take into account the rights of its employees to bodily integrity and the right to freedom of religion, belief and opinion, as contained in the Constitution of the Republic of South Africa.

Employers are furthermore required to notify all employees of the contents of the Direction and the plan it prepares, as well as the manner in which it intends to implement it and must consult with the representative Union/s and its health and safety committee.  Any applicable collective agreement must of course also be considered.

Employers should also give administrative support to employees who wish to register on the Electronic Vaccine Data System Registration Portal for Covid-19 and allow employees to have paid time off to be vaccinated. If reasonably practicable, transport should be arranged to and from the vaccination site.

Employees who suffer side effects as a result of a Covid-19 vaccination and are consequently unable to work, should be placed on paid sick leave.  In this regard the vaccination certificate issued by an official vaccination site would, for all intents and purposes, serve as a medical certificate.

Annexure C to the Directions provides for guidelines on a mandatory workplace vaccination policy. The guidelines are intended to assist employers, Unions, arbitrators and the Courts in determining the fairness of a mandatory workplace vaccination policy and are generally worded.

An important aspect, however, is that part of Annexure C dealing with employees who refuse to be vaccinated on any constitutional or medical ground. The guidelines suggest that an employer should in those circumstances:-

• counsel the employees and allow them to seek guidance from a health and safety representative, worker representative or union official;
• refer the employees for further medical evaluation, should there be a medical contra-indication for vaccination; and
• if necessary, take steps to reasonably accommodate the employee in a position which does not require the employee to be vaccinated.

The Direction clearly makes provision for employers to implement a mandatory vaccination policy, subject to certain considerations. This will require employers to think deeply about the issue, and will require them to be sensitive to a variety of views and beliefs regarding vaccination and objections thereto.

Employers will also be required to exhibit some flexibility in relation to reasonably accommodating employee who refuse vaccinations. The Direction suggests that reasonable accommodation may include isolation within the workplace, working outside of ordinary working hours and wearing a N95 mask. The option of accommodation may, however, have its limits and employers may be required to take additional steps to address the issue.

Employers have 21 days to comply with this Direction (i.e. by 2 July 2021). We are available to assist with and advise on any aspects relating to the Direction.
 
The Employment Law, Benefits, Industrial Relations and Discrimination Department
of Cowan-Harper-Madikizela Attorneys