Netwerk24 recently interviewed Jacqui Reed, Senior Associate in the Employment Law, Pensions, and Incentives team South Africa, about many employers’ decision to end mandatory workplace vaccination policies.
Is it necessary for employers to satisfy any regulatory requirements before discontinuing the mandatory vaccine policy? Is it essential to conduct another risk analysis and consultation process?
After the National State of Disaster was lifted on April 5th, the Code of Practice: Handling SARS-COV-2 Exposure in the Place of work, 2022 went into effect. The Code of Practice replaces the old Direction on Occupational Health and Safety Measures in Certain Workplaces, that was in effect from 11th June 2021 to 4th April 2022. Both the Direction and Code permit employers to implement a mandatory vaccination policy if certain procedures are followed, such as carrying out a risk assessment and drawing up plans based upon the risk assessment. If indeed the risk assessment concludes that a mandatory vaccination policy is necessary, the employer must consult with the appropriate stakeholders.
The employer may implement the policy after the consultation period has ended and the employer is satisfied that it would be appropriate to do so after considering the employees’ submissions relating to its implementation. It must then deal with individual policy objections, determining whether they are valid and whether reasonable accommodations can be made for the employee. If no valid objections are raised, the employee may be fired.
Employers and employees are still required to comply with Occupational Health and Safety Act and provide a healthy and safe working environment to the greatest extent reasonably practicable, regardless of the Code’s current status.
Employers may implement policies and procedures to meet operational needs; however, this does not constitute a change in the terms and conditions of employment for an employee. The law required extensive consultation before implementing the mandatory vaccination policy, which is not the norm for all workplace policies and procedures. Given the issue’s sensitivity, extensive consultation is understandable and reasonable.
While the Code does not require consultation if the mandatory vaccination policy isn’t any longer in effect, employers should do so for the following reasons:
A healthy and safe working environment must still be maintained and provided by an employer. If an employer incorporated the vaccination policy to ensure a safe and healthy workplace, it must be able to rationalize why, in light of that obligation, it now thinks the mandatory vaccination policy is no longer necessary. It might do so if the vast majority of its workforce is immunised and the number of workers who have become seriously ill or died as a result of its high vaccination rate has significantly decreased since its implementation.
Some employees were fired because they fail to cooperate with mandatory vaccination policy. If new conflicts arise, the employer will need to distinguish those workers and circumstances from the current situation.
Employees may refuse to work if circumstances appear to the worker / safety and health and representative to present a serious or imminent risk of COVID-19 exposure.
Is it legal for an employee to refuse to work in a workplace where mandatory vaccinations have been eliminated?
If a worker refused to work because the policy’s withdrawal would create an unsafe working environment, keep in mind clause 15 of the Code, that states that workers may refuse to work if circumstances arise that appear to the employee / safety and health representative to present an imminent or serious risk of COVID-19 exposure with reasonable justification. When an employee refuses to work, he or she must notify his or her employer, who then must consult with key parties and attempt to resolve the conflict. If the problem cannot be resolved within 24 hours, the employer must notify the inspector, the employee, and any other relevant stakeholders.
If an employee can justify refusing to work because the repeal of the mandatory vaccination policy involves a serious or imminent risk of being exposed, the employer must be able to give a valid justification for the repeal of the mandate.
Given the significant relaxation of restrictions and the removal of the National State of Disaster, an employer could probably justify the decision, but it’d be prudent to discuss with employees first.