Mandatory vaccinations in the workplace: Directive does not envisage a blanket approach

MANDATORY VACCINATIONS in the WORKPLACE

DIRECTIVE DOES NOT ENVISAGE

A BLANKET APPROACH

by Jaco Swart

Dear employer

There has been a number of reports indicating that some employers are planning to implement a policy of mandatory vaccinations across their entire workforce.

This decision, it is assumed, is based on the opportunity created by the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“the directive”), which was gazetted by the Minister of Labour on 11 June 2021.

This directive, in essence, permits employers to implement a mandatory vaccination policy in the workplace.

It is however not that simple.

The wording of the directive clearly indicates that a blanket mandatory vaccination of all employees was never the intention.

Section 3(1)(ii) of the directive indicates that if an employer elects to make vaccinations mandatory, it should “…identify those employees who by virtue of the risk of transmission through their work or their risk for severe Covid-19 disease or death due to their age or comorbidities that must be vaccinated.”

The directive then goes further to provide that where a particular employee, so identified, objects to being vaccinated on constitutional or other grounds, the employer must attempt to accommodate such an employee by virtue of other measures such as wearing of masks, social distancing, setting up screens or remote working arrangements. It is only if such accommodation of an employee would cause undue hardship for an employer that dismissal of the employee may be considered.

The employer must therefore:

• firstly identify “high risk” employees – not all employees; and
• secondly, should be able to show that it cannot accommodate any of these employees.

Clearly, a blanket mandatory vaccination was not envisaged.

It is difficult to imagine a situation where an employer will be able to successfully prove that it was not in a position to accommodate any of its employees, without undue hardship, especially in light of the fact that the employer must have already made these accommodations, at least in respect of some employees, since the inception of the lockdown.

Even if an employer, who implemented a blanket vaccination policy, would be able to successfully justify the limitation of constitutional rights based on the “greater good” argument, it would still face an uphill battle to prove a fair dismissal in terms of the provisions of the aforementioned directive, the Labour Relations Act and the Employment Equity Act.

We find ourselves in unchartered territory and employers are advised to exercise extreme caution in this regard.

Jaco Swart is the National Manager of the National Employers’ Association of South Africa (NEASA).

For more information:
NEASA Media Department
media@neasa.co.za