Section 8 (1) of the Occupational Health and Safety Act 85 of 1993 (OHSA) requires an employer to provide and maintain a safe and healthy working environment for all employees. The OHSA further requires employers to ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities (such as customers, clients or contractors and employees) are not exposed to hazards to their health or safety.
In light of this obligation, many companies have put in place policies which outline measures for daily COVID-19 Screening of employees and visitors which are intended to mitigate the spread of the Coronavirus in their facilities. However, as the Coronavirus disease 2019 (COVID-19) outbreak continues to evolve and spread globally, policy decisions need to be updated based on current recommendations from WHO and any regulations published by government.
A particularly important development in 2021 is the phased roll-out of COVID-19 vaccinations by the South African government. While a roll-out of this magnitude cannot be described as anything other than a welcomed relief for health-care providers, it has precipitated a polarised debate between ‘anti-vaxxers’ and those in favour of the vaccine.
This clash in ideologies presents a further challenge for employers as the second COVID-19 wave continues. Should COVID-19 vaccinations become readily available, employers will be forced to decide whether to apply mandatory vaccination policies to their workforce. One argument in favour of such a policy is the employer’s obligation to provide and maintain a safe and healthy working environment for all of its employees, as outlined above.
However, this obligation must be balanced against the other rights enjoyed by employees as entrenched in the Constitution of the Republic of South Africa, 1996, including, but not limited to, the right to bodily and psychological integrity. In acknowledgment of this right, the National Health Act 63 of 2003 prescribes that a health service may not be provided to a user without the patient’s consent. Upon the implementation of a mandatory vaccination policy by an employer, such consent may arguably be excluded where an employee pursues a COVID-19 vaccination for fear of being excluded from his/her workplace on the basis of such a policy.
An additional layer of complexity is added when one considers that an employee may have religious or moral objections to the vaccination or may suffer from a medical condition which precludes him/her from having the vaccination.
It remains to be seen, ultimately, whether an employer may legally require employees to vaccinate before returning to work, or whether they could fairly dismiss an employee or employees for refusing to vaccinate. This is likely to be decided by the courts in due course. However, in light of the intricacies involved in the application of a mandatory COVID-19 vaccination policy in the workplace, it is recommended that employers start to consider an approach to COVID-19 vaccinations be adopted which includes some or all of the following aspects:
- Keeping up to date with the phased roll-out of COVID-19 vaccinations by government as many employees are only likely to become eligible for the vaccination much later in the year;
- A workplace-wide training session wherein employers educate employees about the COVID-19 vaccination including a description on how the vaccine works, its efficacy and the unlikeliness of long-term side effects;
- A COVID-19 vaccination drive, wherein the employer encourages its employees to have the vaccination at a cost subsidised by the employer;
- Maintaining a list which outlines the vaccination status of employees, in line with Protection of Personal Information laws, with the purpose of achieving a percentage of vaccinated employees which is necessary to create a ‘herd immunity.’ According to the latest COVID-19 Regulations, it appears that it is the government’s view that ‘herd immunity’ is likely to be achieved when approximately 67% of a population has received the vaccination.
Due to the imminent threat a COVID-19 outbreak poses to the health and safety of its workplace, employers are encouraged to begin considering how they intend to approach the application of the COVID-19 vaccination to their employees should they become eligible. It is absolutely crucial that employers respond responsibly and transparently to all health precautions which become available in the fight against the COVID-19 pandemic.