South Africa: Q&A - Employer COVID-19 Vaccination Policies

*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*

Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

There is nothing in South African law which expressly or directly prevents an employer from implementing a policy requiring compulsory vaccination or simply requiring an employee to be vaccinated. However, constitutional rights and other legal considerations potentially circumscribe an employer’s ability to do so, including legislation prohibiting unfair discrimination, unfair labour practices and unfair dismissals.

Conceivably, it may also be possible for an employer to persuade a court that, for the duration of the COVID-19 pandemic, vaccination is an ‘inherent requirement’ of certain work and/or that operational requirements justify mandatory vaccination. The common law principles of contract may also be relevant in specific instances.

In certain circumstances, an employer could also justify compulsory vaccination on the basis of public safety and/or that it is a health and safety requirement, provided that it is the least restrictive means available to achieve health and safety in the workplace, and that it strikes a balance between the constitutional rights implicated and the health and safety requirement.

Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?

If a vaccination policy is not implemented for valid, fair, reasonable and/or justifiable reasons in the employer’s specific workplace, an employee may refuse to be vaccinated on the basis that it violates his or her constitutional rights. Employers should take religious, medical, safety-related, cultural and similar objections seriously and aim to respect and accommodate employees’ genuinely-held views.

With due regard to all relevant factors and the facts of each case, an employer would need to make its own assessment based on its circumstances. The outcome of such an assessment may well change as time progresses.

In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?

Should an employer determine that mandatory vaccination is valid, fair, reasonable and/or justifiable, it may take the following action if its employees refuse to comply with its policy:

• · if there is no justifiable reason for the refusal – the employer may take disciplinary action;
• · if there is a justifiable reason for the refusal – the employer may consider incapacity or, potentially, operational requirements proceedings.

Such a dismissal may be fair, reasonable and ‘just cause’ in certain circumstances, failing which, such a dismissal has a variety of risks including being automatically unfair, unfair and/or unfair discrimination.

What benefits or accommodations do employers have to make for vaccinated employees?

While there are no specific benefits or accommodations which an employer needs to provide to vaccinated employees, employers have a general obligation to accommodate and implement special measures for employees who fall within one of the classified vulnerable categories.

Once a vulnerable employee is vaccinated, this may mitigate against the severe adverse effects they might have otherwise experienced if they contracted the virus. In other words, should the vaccination reduce the level of these individuals’ vulnerability by rendering the virus under control, they are seemingly, less vulnerable. The requirement to provide special measures to these vaccinated employees may fall away partially or entirely.

Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?

If there is a vaccination policy that is fair, reasonable, justifiable and valid, it would be important to engage with an employee who refuses to work alongside their unvaccinated colleagues in order to understand the underlying rationale of their refusal and where reasonable, to determine whether their underlying concerns can be addressed through the implementation of alternative measures. As such, an employer would need to cater for two scenarios: (i) where the employee has a justifiable reason for his or her concern or (ii) where the employee does not.

In determining the risks associated with having unvaccinated employees in the workplace (and the justifiability of the objecting employee’s concerns), an employer should consider various factors including but not limited to the type of vaccination the employees have taken, and the efficacy of the specific vaccine against transmission of the disease and its symptoms.

If the workplace is objectively healthy and safe and the vaccinated employee’s refusal to work alongside an unvaccinated employee is unwarranted or driven by paranoia or indolence, the employer may take disciplinary action against the employee for, amongst other things, his or her insolence. Disciplinary action may warrant dismissal or action short of dismissal. In the event that it is unsafe for the employee to work alongside their unvaccinated colleague, the legislative procedures prescribed for incapacity and/or operational requirement procedures would need to be followed provided there are legitimate incapacity and/or operational requirements issues.

In your country, are employers required to provide paid leave for employees to get vaccinated?

As the law stands, employers are not required to provide paid leave for employees to get vaccinated over and above ordinary contractual and/or statutory leave entitlements. However, should an employer impose a mandatory vaccination policy, we suggest that it considers providing special paid leave to its employees within reason. To the extent that an employee experiences side effects after being vaccinated, he or she would be entitled to use his or her (paid) sick leave in terms of the Basic Conditions of Employment Act, 1997.

Contributors

ENSafrica
Lauren Salt, lsalt@ensafrica.com
Jessie Moore, jmoore@ensafrica.com