Your employer may now require you to disclose your vaccination status and to produce a vaccination certificate.
This is after the Department of Labour published new legislation earlier this week called the Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022 (’Code’).
It was gazetted by employment and labour minister Thulas Nxesi and will come into effect at the end of the national state of disaster, which was extended to April 15.
The Code strengthens the employer’s powers regarding vaccination while limiting the grounds on which employees may refuse to get jabbed.
“In giving effect to this Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate,” the new law states.
But what exactly are the actions that your employer is allowed in terms of your vaccination status?
IOL spoke to labour expert Michael Bagraim, Bradley Workman-Davies from Werksman, and experts from Cliffe Dekker Hofmeyr Inc and it’ associate Abigail Butcher, to clarify what the Code means for vaccinated and unvaccinated workers.
Should employees disclose their vaccination status to their employer and why?
The experts all agree that employees must disclose their vaccination status as soon as the business completes a consultation process.
“Employees must disclose their vaccination status as soon as the business has completed a consultation process and a vaccine policy is put into place. These policies are done in terms of the Health and Safety Regulations and it is vital for employers to know who has complied,” said Bagraim.
CDH employment experts said employer’s acting in line with the Consolidated Direction on Occupational Health and Safety (’Directive’) may implement a mandatory vaccination policy in the workplace requiring certain employees to become vaccinated. This is subject to specific guidelines.
“Accordingly, employers may require employees, in line with their obligations under the Protection of Personal Information Act, to vaccinate and disclose their vaccination status where they implement a mandatory vaccination policy in compliance with the Directive,” said CDH.
Can action be taken against those who refuse mandatory vaccination at work? What if they have a letter from the doctor exempting them?
Bagraim said action may be taken employees who refuse mandatory vaccinations at work - even if they have a letter from their doctor.
“Even with a letter from a doctor exempting them the action can be taken. This action will obviously not be taken unless there has been proper consultation, proper policies are in place and there is an exploration of ways and means of accommodating the employee without the vaccination.”
Butcher added that recognised grounds for objection include certain medical conditions.
“An objective assessment of the validity of the ground of objection will determine the action which may be taken by the employer, but in short, action may be taken against those who refuse mandatory vaccination at work.
“According to both the Directive and the Code, if an employee refuses to be vaccinated, in addition to an assessment of the ground of objection, the employer is required to counsel the employee, and if requested, allow the employee to seek guidance from a health and safety representative, and take steps to reasonably accommodate the employee in a position which may not require vaccination, where possible,” said CDH.
Workman-Davies said it is “allowable” for employees who have a letter from their doctor exempting them from mandatory vaccination to refuse on the vaccination on certain grounds.
Can employers dismiss or fire employees who have not been vaccinated?
Employers can also dismiss employees who have not been vaccinated, said Bagraim, adding that this is subject to the entire process as outlined by the Health and Safety Regulations and the regulations put out by the Department of Employment and Labour.“
Workman-Davies from Werksmans Attorneys said that while action may be taken against employees who refuse mandatory vaccination at work, taking disciplinary action should be avoided.
“This is currently still a controversial response by an employer. Other options to accommodate the employee should be explored first.
CDH employment experts explained. “In circumstances where an employer has conducted a risk assessment informing its decision to implement a mandatory vaccination policy and an employee falls within a category of employees who are required to become vaccinated, then employees refusing to be inoculated without reasonable justification, may possibly be terminated on the basis of operational requirements, potential incapacity or even misconduct where it constitutes a failure to abide by company policy. A dismissal for misconduct should however be a measure of last resort and must always be assessed on a case-by-case basis.”
Are companies allowed to state on job ads that they won’t hire you unless you’re vaccinated?
“Yes, we are of the view that this would be a reasonable requirement,” said Workman-Davies.
“I would strongly suggest that company's that do have the policies to only hire in terms of vaccination, they are entitled to do this,” said Baigram.
Butcher too said that an employer may state in a job advertisement that vaccination is a requirement. “Where an employer has a mandatory vaccination policy and vaccination is an inherent requirement of a position then the employer may state in a job advertisement that vaccination is a job requirement. However, the exemption procedures that apply to current employees under the mandatory vaccination policy should be extended to job applicants.”
What does the Code mean in layman's terms?
Bagraim said the code of Good Practice is very similar to the Code that South Africa has under its Disaster Regulations.
“In essence, the Code calls for a proper process and procedure to take place with regard to interviewing all the staff looking at the protocols and looking at the operational requirements of the business,” said Bagraim, adding that the process of implementing mandatory vaccination policy is quite a complicated one.
CDH experts say that while this Code and the Consolidated Direction on Occupational Health and Safety (the ’Directive’) published on 11 June 2021 share similarities, there are notable changes.
“The Code is significant in that it entitles employers to adopt mandatory vaccination policies under the Labour Relations Act, instead of being tenuously linked to the National State of Disaster regulations which would cease to have legal effect once the National State of Disaster ends.
“Employers are required to undertake, or update, a risk assessment to determine the risk of exposure to COVID-19 infection in the workplace. Employers are required to develop and implement a plan to limit infection and transmission in the workplace and mitigate the risks of serious illness or death. This may include the adoption of mandatory workplace vaccination policies where the operational requirements of the business support this measure.”
Furthermore, the Code seeks to manage absence from work due to infection, self-isolation, and any adverse effects of vaccination, and provides the framework to accommodate employees who refuse or fail to vaccinate against COVID-19.
“A notable change from the Directive to the Code is that under the Directive employees can object to vaccination on the basis of medical and constitutional grounds. The second ground does not appear in the Code, possibly leaving resistant employees with only one recognised ground for objecting to the vaccination.”
It is worth noting that the Directive remains in effect.
IOL