No legal requirement yet for mandatory vaccinations

The publication of the revised Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces on 11 June 2021, does not mean that employers are now entitled by law to subject employees and independent contractors to mandatory vaccinations.

Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa

There has been much controversy since the Minister of Employment and Labour issued the revised Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces (the Directions) on 11 June 2021.

In some quarters these Directions have been interpreted to mean that employers are now entitled by law to subject employees and independent contractors to mandatory vaccinations and should they refuse to be vaccinated, it is assumed that such refusal would be met with a termination of the employment agreement.

This is a misunderstanding of what Regulation 3 (1) (a) (ii) stated:

3.        Risk assessment and plans for protective measures

(1)       Every employer must —

(a) undertake a risk assessment —

(i)     to give effect to the minimum measures required by these Directions, taking into account the specific circumstances of the workplace and the requirements of the OHSA Regulations for Hazardous Biological Agents; and

(ii)    within 21 days of the coming into force of the amendment to this Direction, in accordance with sections 8 and 9 of the OHSA, taking into account the operational requirements of the workplace, whether it intends to make vaccination mandatory and, if so, to 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 (My emphasis);

It is quite apparent from this clause that the employer has a discretion to determine whether he would adopt a mandatory vaccinations policy. This discretion would not only be subject to operational requirements, but to a number of other requirements as well.

The employer would, firstly, be required to identify which employees would be subjected to a mandatory vaccination policy - from a reading of the clause such a policy would not find blanket application.

The identification of such employees would be informed by at least two elements, namely the age of the employee and/or whether the employee in question suffered from comorbidities.

The purpose of this exercise would be to establish whether the employee so identified runs the risk of contracting a “severe” form of the COVID-19 virus (which could result in his death) because of the nature of his work. This means that the type of work the employee performs and the circumstances in which this work must be performed, is of crucial importance when identifying those employees.

This is, however, not the end of the requirements which must be satisfied before the employer can introduce a mandatory vaccination policy at the workplace.

The employer must, secondly, have regard to section 12(2)(b) of the Bill of Rights which protects the employee’s rights relating to his bodily integrity, freedom of religion and freedom of belief and opinion.  Read on its own, this section empowers the employee to refuse to be vaccinated.

These individual rights could be trumped by the provisions of section 36 of the Bill of Rights which speaks to the limitation of individual rights in favour of others and, more particularly, the public at large in certain circumstances.

The principle that individual rights are outweighed in certain circumstances is well established in the case law. We turn to examples of such instances in the next article, “The right to refuse a vaccination is not cast in stone”.

Thirdly, the employer must have regard to any collective agreement which may impact on his discretion to adopt a policy relating to mandatory vaccination.

Fourthly, once the employer decides to exercise his discretion in terms of the Directions, he must formulate a vaccination plan based on his risk assessment as to which employees must be vaccinated.

Fifthly, the employer must thereafter consult any representative trade union, any health and safety committee which must be established in terms of section 19 of the Occupational Health and Safety Act, or health and safety representative, whereafter the plan must be available for inspection by, inter alia, an inspector.

Regardless of how strong the arguments are in favour of mandatory vaccination at the workplace, the fact of the matter is that these Directions have done no more than to have paved the way for the introduction of mandatory vaccination policies. Employers who ignore or misunderstand Regulation 3 of these Directions, might find themselves on a rocky road.

Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd