On 11 June 2021, the Department of Employment and Labor in South Africa gave direction on immunization strategies in the work environment, as the change to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces. Businesses trying to carry out an obligatory antibody strategy should embrace a danger appraisal by 2 July 2021.
Managers looking to execute an obligatory antibody strategy should attempt a danger appraisal by 2 July 2021.
In more detail
Following quite a while of hypothesis, the Department of Employment and Labor in South Africa has given direction comparable to inoculation arrangements inside the working environment. On 11 June 2021, the Minister distributed a correction to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive), which makes arrangements for managers to carry out an obligatory inoculation strategy in their work environment.
Carrying out the approach
Before a business carries out such an approach, it should attempt a danger evaluation within 21 days of the Directive being distributed, i.e., by 2 July 2021. This danger evaluation must:
think about the business’ functional necessities;
demonstrate whether it expects to carry out an obligatory inoculation strategy;
recognize which representatives it will need to be immunized dependent on the danger of procuring COVID-19 at work, or the danger of extreme COVID-19 side effects because of the worker’s age or co-morbidities; and
be led as per segments 8 and 9 of the Occupational Health and Safety Act, which puts an obligation on the business to keep a workplace for its representatives and different people that is protected and, to the extent sensibly practicable, liberated from wellbeing chances.
Fostering an arrangement
The business should then foster an arrangement that sets out the actions it will execute to guarantee the working environment is alright for its representatives. This arrangement ought to show whether the business expects to make the immunization obligatory for any workers, and must personality the representatives who will be needed to be inoculated, the cycle which will be followed to guarantee consistency with the Directive and regardless of whether the business intends to make the antibody required as and when it opens up to representatives. Any business that is of the assessment that the immunization of its representatives is essential for their wellbeing and security might execute a required inoculation strategy. The business’ danger appraisal ought to, notwithstanding, support this prerequisite and demonstrate that there is an authentic requirement for the labor force to be inoculated.
Right to reject
The Directive sets out rules for businesses when drafting and executing a required inoculation strategy. As far as the rules, significance is put on “general wellbeing, the protected privileges of workers and the productive activity of the’s business.” Where a business makes inoculation compulsory, it should inform every representative distinguished in the arrangement that such representative should be immunized as and when the immunization is free to them and that the representative might talk with a wellbeing and security laborer or worker’s organization agent, should the representative wish to do as such. Further, the business should illuminate the worker regarding their entitlement to reject the immunization on clinical or sacred grounds. These grounds are determined in the rules and make arrangements for a worker to reject the antibody on the clinical premise of a “contra‑indication” of the immunization (i.e., a hypersensitive response to the main portion of the antibody or a part of the immunization), or the protected premise of the representative’s, on the whole, correct to substantial respectability as well as the right to opportunity of still, small voice, religion, thought, conviction and assessment, as set out in area 12 and 15 of the Constitution.
The Directive prescribes that where an employee does raise one of these objections, the employer is required to counsel the employee, refer such an employee for a medical evaluation for any allergic reaction to the vaccine and, where necessary, reasonably accommodate the employee in accordance with the Code of Good Practice: Employment of People with Disabilities, as published in terms of the Employment Equity Act. Such reasonable accommodation may include allowing the employee to work offsite, at home, in isolation at the workplace, or in limited circumstances, the employer may require the employee to work with an N95 mask.
Where an employer does implement a mandatory vaccination policy and an employee refuses to be vaccinated, the employer must ensure that the grounds for refusal are considered fully and that the employee is consulted in relation to the grounds raised. However, should the employer be unable to reasonably accommodate the employee and the employee continues to refuse to be vaccinated, and incapacity procedure must be followed before the employer may terminate the employee’s contract?
Paid time off
In terms of section 4(1)(k) of the Directive, employers must give employees paid time off at the date and time of their vaccination, regardless of whether such vaccination is in terms of a vaccination policy or not, and sick leave must be used should an employee experience any adverse side effects from the vaccine. An employer may request proof of the vaccination when returning to work, or proof that the vaccination will take place during working hours. Where an employee is vaccinated in terms of the mandatory vaccination plan, the employer must afford the employee paid time off for adverse side effects of the vaccine, even if the employee has exhausted their sick leave entitlement. Alternatively, the employer may lodge a claim with the Compensation Fund, in terms of the Compensation for Occupational Injuries and Diseases Act. In addition, the employer should organize transport to and from the vaccination site, if possible, for employees identified in the mandatory vaccination policy.
In order to comply with the Directive, employers must update their risk assessment of the workplace, taking into consideration any employees who are required to be vaccinated. Employers must take notice of the timeframe afforded by the Directive and ensure that the plan is in place before the 21-day period has lapsed. It is important for employers to conduct the risk assessment objectively and determine the actual need for vaccinations in the workplace and amongst certain categories of employees. Further, any objection raised by an employee should be considered seriously and the employer should try to accommodate such employee where possible. However, the employer may dismiss the employee for incapacity as a last resort.