25 March 2022
Courtesy of ENS Africa

On 15 March 2022, the Department of Employment and Labour issued a Code of Practice on managing exposure to COVID-19 in the workplace (the “New Code”). The New Code is to take effect on the date that the Declaration of a National State of Disaster lapses. On the same date, the Declaration of a National State of Disaster was been extended to 15 April 2022.

Practically, this means is that the New Code will only come into effect once the existing disaster management framework has fallen away. Until that time, it seems that the Consolidated Direction on Health and Safety in Certain Workplaces (which currently deals with mandatory vaccination) will still be in force.

Given that the Declaration of a National State of Disaster was just extended by a month, this may not have been the intention of the drafters at the time, particularly in circumstances where portions of the Consolidated Direction conflict with the new Adjusted Alert Level 1 regulations. But insofar as the topic of mandatory vaccination is concerned, the New Code does provide some indication (and much needed clarity) on what the intention of the drafters may have been when drafting the Consolidated Direction.

What has stayed the same?

As with the Consolidated Direction, an employer is still required to do the following in preparation of a mandatory vaccination policy:

Undertake a risk assessment, taking into account the relevant occupational health and safety legislation; Based on the risk assessment, identify any measures to be implemented in respect of the vaccination of its employees (and identify the dates by when employees must be fully vaccinated, which includes any booster doses); Consult on the risk assessment and policy with any representative trade union and any health and safety committee, or health and safety/employee representative, as the case may be; and Make the risk assessment available for inspection by the above representatives and/or an inspector.

The employer is still required to educate employees on the vaccines. In this regard, the employer is required to counsel employees on the nature of vaccines used in the country, the benefits associated with these vaccines, the contra-indications to the vaccine and the nature and risk of any serious side effects.

And finally, an employee can still refuse to be vaccinated and there is a process for an employer to counsel the employee and refer an employee for medical evaluation, if the refusal relates to medical contraindications to the vaccine.

What has changed?

Every employer must now take measures to determine the vaccination status of their employees. In giving effect to the New Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate. This has caused much anxiety for employers who have been uncertain if they could ask for this information. The confirmation that an employer has an obligation to take measures to determine employees’ vaccination statuses and thus, impliedly the employee has an obligation to disclose this information is a welcome inclusion in the New Code, particularly where employees who are reticent to vaccinate often refuse to disclose their vaccination status and claim that it is an unlawful request (even where it is not).

Insofar as a refusal or failure to be vaccinated is concerned, there are three key changes:

There is no longer a statement of the grounds upon which an employee can refuse to be vaccinated; There is an obligation to take steps to reasonably accommodate employees who refuse vaccination (on any grounds); and If an employee produces a medical certificate attesting that an employee has contra-indications, and the employer accepts the medical certificate, or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications, the employer must accommodate the employee in a position that does not require the employee to be vaccinated.

In the New Code, there is no reference, at all, to constitutional grounds as the basis for refusal and it appears that the New Code recognises that an employee can refuse vaccination on any ground. The wording of Clause 12(4) provides, without qualification, that:

“If an employee refuses to be vaccinated, the employer must-

(a) counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official; and

(b) take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.”

This appears to suggest that, in all circumstances, an employer must look to accommodate an employee who refuses to be vaccinated. The problem with this is that it gives free rein to employees to object on a multiplicity of unjustified grounds.

As an example, an employee may seek to refuse to vaccinate solely on the basis that they want to continue working from home. If an employee can work remotely and there is an obligation to take steps to reasonably accommodate the employee, an employer may find itself in the position of having to reasonably accommodate an employee who, in essence, fails to follow a lawful and reasonable instruction to return to work (and vaccinate).

In addition, the New Code also suggests that an employer must seek to accommodate employees who refuse or neglect to be vaccinated in accordance with the instruction to do so. The New Code states that one of its purposes is to provide guidance to employers seeking to accommodate employees who refuse or fail to vaccinate against the virus.

This seems somewhat incongruent with the ordinary principles of employment law, but until there is further clarity on this issue employers seeking to discipline employees for their refusal or failure to vaccinate (based on unjustified reasons) employers should, as a measure of mitigation, explore whether there is any way to reasonably accommodate the employee prior to dismissing them. In the flurry of cases that we have seen referred to the Commission for Conciliation, Mediation and Arbitration, an employer might very well be advised to employ these measures prior to the enactment of the New Code.