The Occupation Health and Safety Act 93 of 1995 regulates workplace safety in South Africa. The legislation places an obligation on employers to ensure that the place of work is safe for all their employees to conduct their duties.
To achieve a safe working environment employers must adopt interventions and put measures in place that are necessary to do so. The Covid-19 virus has become the latest threat to workplace safety in the past 16 months and employers are in a fix on how to approach the delicate issue of ensuring the safety of their employees against transmissions in the workplace.
Business and government are in agreement that vaccination is key to achieving control over the virus and the vaccination drive is in full swing across South Africa, starting with identified groups that are at most risk i.e. healthcare workers, frontline personnel, the elderly, people with underlying medical conditions. The target is to achieve herd immunity as soon as possible.
Employers, under the auspices of NEDLAC have also come into the fray with suggestions to have vaccination policies in the workplace for their employees. In a way these methods may seek to decentralise vaccination especially for bigger companies, whereby they can source the vaccine and vaccinate their employees privately. While it seems as a noble move, does this approach cater for employees who may object to taking the vaccine?
The dynamics around this issue are multi-faceted and there are a lot of pragmatic, legal and constitutional implications should such policies be implemented.
Firstly, while there will be employees who will gladly take the vaccine, others will not and therefore the confronting question would be, does it then not defeat the purpose because the employees who do not take the vaccine may risk infecting the other employees whose immune system remains weak despite taking the vaccine.
It seems to make sense that it should be made compulsory for all employees to be vaccinated so that all parties may rest in confidence that the prevalence of the virus in that particular workplace has been alleviated.
Secondly and related to the last point above, in the event that the vaccination policy is made compulsory, those who refuse to take the vaccine will be expected to do so on constitutional grounds whose rights are indeed protected in a justiciable Bill of Rights.
These relate to the right to religion, bodily and psychological integrity, not to be subjected to medical procedures without consent, freedom of thought, belief, culture, and opinion. Despite these rights not being absolute, employers will need the State to put enabling legislation or statutory instruments to limit such rights in the least possible way to achieve the purpose so as to pass the legality test.
Thirdly, in the event that employers source their own vaccines and enforce a mandatory vaccination drive in the workplace, they must also be prepared to accept the risks and consequences that come with it.
In as much as many vaccines went under several tests before approval for distribution, it is factual that the world was under a race to come up with these vaccines and to contain the pandemic as soon as possible. There is little evidence that in the long term after taking the vaccine, there are no catastrophic side effects.
This is what conspiracy theories on cyberspace have feasted on in the past couple of months. In the event that side effects begin to manifest in employees as a direct result of the vaccines, the employers may expect a flood of lawsuits from employees in compensation in the form of medical care or monetary whichever is appropriate under the circumstances.
In the case of MEC for Health, Gauteng vs PN (CCT 124/20)  ZACC 6 the Court held that compensation in cases of medical negligence may be in the form of relevant medical care if appropriate under the circumstances and not only in monetary form. Employers too may have to contend with this.
Finally, if the vaccination drive by the state is kept on voluntary basis, employers may need to adopt measures that separate employees who took the vaccine and those who did not by providing alternative roles for these different groups.
Further, employers may seek to enforce more stringent social distancing protocols between these groups and use better PPE which is stronger to limit the risks of infection. This is a practical solution over dismissing an employee who decides not to take the vaccine.
We strongly advise employers to seek legal advice about the practical and legal considerations as outlined in this article, to avoid further negative consequences emanating from the ravages of the Covid-19 virus.
Our labour law attorneys in Cape Town and Johannesburg stand ready to assist your business to achieve its desired legal attainments in this challenging period of the pandemic. Please contact us to set up an appointment.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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