New regulations for employers whose workers refuse to get vaccinated

Everyone is looking forward to live life like it used to be before the pandemic when vaccinations become available to everyone, but what happens if employees refuse to be vaccinated on medical and constitutional grounds?

Once vaccinations become more widely available there will be people who will refuse to be vaccinated, which could create tension in the workplace.

However, employers should find a reasonable resolution that accommodates everyone, including those who refuse.

The way to accommodate all employees forms part of the new Consolidated direction on occupational health and safety measures in certain workplaces, gazetted by the minister of employment and labour, Thulas Nxesi.

According to the guidelines, the key principle is that employers and employees should treat each other with mutual respect, with a premium placed on public health imperatives, the constitutional rights of employees, and the efficient operation of the employer’s business.

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When can employees refuse?

Employees can refuse vaccination on constitutional grounds as part of their right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution.

They can also refuse on medical grounds, such as an immediate allergic reaction to a previous dose or a known diagnosed allergy to a component of the Covid-19 vaccine.

3-step risk assessment

The Consolidated OHS Direction now requires employers to include whether it intends to make vaccinations compulsory in its risk assessment by doing this three-step enquiry:

• Firstly, the employer must take the operational requirements of the workplace into account: this means that the Direction does not make vaccinations mandatory, but every employer must take its general duties under the Occupational Health Safety Act into account, which requires it to provide a working environment that is safe and without risk to the health of employees and other people who may be directly affected and that they are not exposed to hazards to their health or safety.
• Secondly, if the employer decides to make it mandatory once the risk assessment has been done, it must identify employees who will be required to be vaccinated: the employer must identify employees whose work poses a risk of transmission or a risk of severe Covid-19 disease or death due to their age or comorbidities.
• Thirdly, after identifying employees who are required to be vaccinated, the employer must amend its plan to include the measures to implement the vaccination of those employees as and when Covid-19 vaccines become available for them according to the guidelines set out in the Direction.

The National Vaccination Programme is phased in and therefore employers can only require employees to be vaccinated once they become eligible.

“What is critical is that we need to balance the needs and dictates of collective bargaining with the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions,” Nxesi says.

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Plans for unvaccinated employees

This could include an adjustment in the workplace that permits employees to work offsite or at home or in isolation within the workplace, such as an office or a warehouse or working outside ordinary working hours.

In instances of limited contact with others in the workplace, it might include a requirement that the employee wears a N95 mask.