Unpacking the New Code of Practice re Mandatory vaccinations for Covid-19

SUMMARY

On 4 April 2022, President Cyril Ramaphosa announced that the National State of Disaster would be lifted with effect from 00:00 on 5 April 2022. 

One of the effects of this is that the Code of Good Practice: Managing Exposure to SARS-COV-2 in the Workplace (Code) became effective on 5 April 2022.

Whilst it is not a requirement for employers to implement a mandatory vaccination policy in their workplace, those employers who wish to do so and who are governed by the Occupational Health and Safety Act (OHSA) should be guided by the Code, a summary of which is set out below.

The Code provides employers who have implemented a mandatory vaccination policy or who intend to implement such a policy with the necessary clarity and comfort, firstly, in relation to vaccinations status and whether an employer is entitled to this information, and secondly, in relation to whether employees may or may not be dismissed for failing or refusing to vaccinate and thereby acting in contravention of a mandatory vaccination policy.

It remains to be seen whether employers who are yet to implement such policies will do so in light of the relaxing of restrictions. There have been several media reports of large organisations choosing not to implement their mandatory vaccination policies and to rather focus on persuading employees to vaccinate.

In his address on 4 April 2022, President Ramaphosa noted that by ending the National State of Disaster, "we are each taking more individual responsibility for protecting our health and the health of others.

CONTINUING OBLIGATIONS

Employers ought to be aware of their continued obligations to their employees, other workers and members of the public to:

1. maintain as far as reasonably practicable a working environment that is safe and without risks to the health of workers;
2. take such steps as may be reasonably practicable to mitigate the hazard or potential hazard;
3. ensure, as far as reasonably practicable, that all persons who may be directly affected by their activities (customers, clients, contractors and their workers) are not exposed to hazards to their health and safety; and
4. implement special measures to prevent infection and transmission and mitigate risk of serious illness or death because  the identifiable hazard is the COVID-19 virus infecting workers, virus transmission and the risk of serious illness or death if infected.

The Code is intentionally general because workplaces and their requirements differ. Departures from the non-obligatory provisions of the Code may be justified in appropriate circumstances. Any deviation from the Code must be justifiable.

WHAT ARE EMPLOYERS REQUIRED TO DO WHEN IMPLEMENTING A MANDATORY VACCINATION POLICY?

Employers are required to undertake a risk assessment to give effect to their obligations under OHSA. The risk assessment will dictate the content of the plan which must include any measures to be implemented in respect of the vaccination of employees.

The risk assessment and plan must include details of:

1. the employees who are to be vaccinated;
2. the reporting process when employees are symptomatic and isolation protocols;
3. workplace protective measures, including personal protective equipment and ventilation;
4. the process by which the obligations in terms of the Code will be complied with;
5. a procedure to resolve a dispute when the employee exercises the employee's right of refusal to work;

The risk assessment and the plan may include details of:

1. social distancing measures;
2. PPE measures;
3. personal hygiene measures; and
4. any special measures to mitigate the risk of infection, serious illness or death.

The risk assessment and the plan may only be done in consultation with trade unions, the health and safety committee, health and safety representatives or employee representatives, whichever is applicable.

Employers are also required to notify workers of the contents of the Code as well as the plan and manner in which it intends to implement the plan.

Employers remain obliged to provide workers with information pertaining to details relating to the virus, including the manner of transmission, the manner in which transmission may be reduced, the symptoms associated with infection as well as the nature of vaccinations and their benefits and contra-indications.

Importantly, employers are required to take measures to determine the vaccination status of their workers.

Employers are also required to require workers to immediately inform them if they experience COVID-19 related symptoms.

Where there is evidence that an employee contracted COVID-19 arising out of and in the course of employment, the employer is obliged to lodge a claim for compensation.

Ventilation remains a critical tool in the battle against transmission of COVID-19 and the Code contains extensive provisions in this regard.

VACCINATION OF EMPLOYEES

Clause 12 of the Code provides that employers must do the following:

1. notify any employee who has been identified for mandatory vaccination;
2. counsel the employee on vaccinations
3. permit the employee, at the employee's request, to consult a health and safety representative, worker representative or trade union official;
4. assist the employee in obtaining the employee's vaccination certificate;
5. give the employee paid time off to be vaccinated and provide transport to and from the nearest vaccination sire.

Importantly, employers may require employees to disclose their vaccination status and produce a vaccination certificate.

Where an employee refuses to vaccinate, the employer must:

1. counsel the employee and if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
2. take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

If the employee produces a medical certificate which confirms that the employee has contra-indications for the vaccine, the employer may refer the employee for a medical evaluation to confirm this at the employer's expense.

If the employer accepts the medical certificate or the further medical evaluation which confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require the employee to be vaccinated. 

KEY TAKE-AWAYS FOR EMPLOYERS

• the requirement to conduct or update the risk assessment and the plan and to consult with the relevant stakeholders in relation to the risk assessment and the plan, which were necessary in terms of the Consolidated Direction on Occupational Health and Safety in Certain Workplaces issued on 11 June 2021 (the Direction) remain applicable;
• the Code does not make provision for employees to object to vaccination on any ground other than a medical ground. The constitutional rights argument (bodily integrity, religion, belief, opinion) is therefore no longer specifically provided for but this does not mean that an employee cannot rely on a constitutional ground when applying for an exemption.  However, in two recent claims, arbitrated upon by the CCMA, the employee's arguments on constitutional grounds (bodily integrity and religion) were rejected;
• employers must take steps to reasonably accommodate those who refuse or fail to vaccinate for whatever reason. This means that employers must attempt to accommodate those employees who object on a constitutional ground or any other ground which does not constitute a medical ground (see below). It does not mean that they must accommodate them or that they are required to accommodate them (which is the case where medical grounds apply (see below)). Practically, where an employer dismisses an employee for failing or refusing to vaccinate, the employer will need to show the extent to which it attempted to reasonably accommodate the employee prior to dismissing the employee and will accordingly be required to justify the reason for dismissal. This was also an obligation in the Direction and has therefore not changed substantially;
• employers must accommodate employees who produce medical evidence that the employee has contra-indications for the vaccine. This means that employees who have a medical basis for failing or refusing to vaccinate cannot be dismissed for such refusal or failure and must be reasonably accommodated;
• employers are entitled to be request proof of vaccination status.

Jacqui Reed, is an employment lawyer at law firm Herbert Smith Freehills.