Workplace Mandatory Vaccination - Beyond The Conversation | Legal Articles

 

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Workplace Mandatory Vaccination - Beyond The Conversation

Mandatory vaccination is one of the topical issues that has been talked about the most in the past several months. Conversations mainly centre around the constitutionality of having a mandatory national vaccination policy against the backdrop of constitutional rights. The policy of the government with regard to Covid-19 vaccination is that it is voluntary, although people are encouraged to do so. In fact a few days ago, the Deputy President DD Mabuza assured the nation that the policy of the government towards vaccination is that, it will remain as it is (voluntary).

 

Employers have an obligation to provide a safe working environment, as per the Occupational Health and Safety Act 85 of 1993. 

 

8. (1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

 

It is in this vein that a group of employers requested the government to consider a regulatory framework around which mandatory vaccination policies could be introduced in the workplace. In the middle of last year and at the National Economic Development and Labour Council, government, business and labour, agreed around the modalities of how vaccine mandates may be possible. Soon thereafter the Department of Labour announced directives and regulations around which employers could introduce mandatory vaccination policies in the workplace. Consequently, it is required that employers perform a risk assessment first in order to formulate their mandatory vaccination policies.

 

  1. The employer must make an assessment based on its operational requirements, to see if mandatory vaccination should be enforced at all.
  2. In the event that the risk assessment establishes that vaccination must be compulsory in the workplace, it must then identify which employees ought to be vaccinated looking at their risk profiles e.g risk of transmission, age, comorbidities etc.
  3. Lastly the policy must then set out the implementation plans of the actual vaccination on the identified groups. 
  4. The policy ought to have provisions for those who would want to apply for exemption.

 

Earlier this year, the CCMA in Johannesburg issued a decision upholding the dismissal of an employee who had declined to vaccinate. It was found that the employer had followed the procedure in the regulations before introducing the mandatory vaccination policy. Further, it was upheld that the concerned employee was employed in a role that is exposed to continuous interaction with other people. At the end of the day this means that the employee who is not vaccinated might expose other employees to the risk of infection as the Covid-19 virus is very contagious.

The conversation has gone beyond whether or not vaccine mandates may be introduced in the workplace (in fact several companies did so towards the end of last year), the discussion now is about whether in a particular case/dispute, it was done correctly as per the regulations and employment law. We foresee some of the disputes surrounding workplace vaccine mandates going all the way up to the Constitutional Court for decision and direction.

 

Van Deventer and Van Deventer Incorporated assists with labour law, civil and general litigation, criminal litigation, human rights law, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others.

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