With the national state of disaster now behind us, employers who have implemented vaccination requirements at their workplaces may find their policies challenged by employees, on the basis that they are no longer legally permissible.
This is considering the fact that such policies were implemented in line with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction), which automatically ceased to be in force and effect when the state of disaster ended, says legal firm Bowmans.
However, although the OHS Direction is no longer in force, the law still permits vaccination requirements at the workplace, the firm said.
The legislative basis for vaccination requirements
The primary basis upon which employers may implement vaccination requirements at the workplace is the Occupational Health and Safety Act (OHSA), which has been in force since long before the OHS direction, Bowmans said.
“In terms of sections 8 and 9 of the OHSA, an employer has a legal duty to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees and others who are directly affected by its activities.
“It is not only the employer that has this duty – in terms of section 14, employees are also under a legal duty to take reasonable care for the health and safety of themselves and others.”
The measures that employers are required to take to comply with this duty are detailed in the various regulations published under the OHSA.
In the context of Covid-19, the applicable regulations that must be considered are the Hazardous Biological Agents Regulations (HBA Regulations), which were recently amended on 16 March 2022, Bowmans said.
In terms of the HBA regulations, employers are required to conduct a risk assessment to determine if any person could be exposed to a hazardous biological agent (HBA) and if so, must take reasonably practicable measures to control such exposure in the workplace.
Regulation 10(4)(g) specifically provides that, where reasonably practicable, such control measures must include, amongst others, making available effective vaccines for those employees who are not immune to the HBA to which they are exposed.
In this regard, the HBA Regulations now confirm that the SARS-CoV-2 virus is classified as a Group 3 HBA and specify that a registered vaccine is available for use in South Africa.
This risk assessment must be conducted by a competent person. A health and safety practitioner would likely qualify as a competent person.
Code of Practice
In addition to the HBA Regulations, the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace (Code) is now in force.
This Code is a guideline in interpreting ‘an employment law’ (including the OHSA). The Code echoes the provisions regarding vaccination policies that existed in terms of the OHS Direction.
In particular, the Code provides that every employer must undertake a risk assessment to give effect to its obligations under the OHSA and the HBA Regulations, and on the basis of the risk assessment, develop a plan to include, inter alia, any measures to be implemented in respect of the vaccination of its employees (including the date by which the employees must be fully vaccinated).
Accordingly, it is the OHSA, read with the HBA Regulations (and as now supported by the Code), which provides the legal basis for an employer to implement a vaccination requirement at the workplace, where this is deemed to be a reasonably practicable control measure.
Whether a vaccination requirement is, in fact, a reasonably practicable control measure will depend on the particular circumstances, based on the employer’s risk assessment.
Important documents to support a vaccination requirement
In developing a policy on vaccination employers would need to prepare the following documents:
- A risk assessment;
- An action plan and/or policy containing a description of the measures to be implemented in respect of vaccination, based on the risk assessment.
In terms of the Code, the employer must consult on the risk assessment and plan with the union/s representing the majority of employees in the workplace, as well as its health and safety representative/committee. In terms of the HBA Regulations, all employees must be informed of the results of the risk assessment, and they must be given an opportunity to comment.
Accordingly, from an evidentiary perspective, the employer must ensure that it is able to produce:
- Proof that it consulted on the risk assessment and the plan/policy with the relevant stakeholders in the workplace; and
- Proof that employees have been informed of the results of the risk assessment, given an opportunity to comment on those results, and have been notified of the contents of the plan/policy, including the obligation to be vaccinated.
The importance of sound medical information
A vaccine requirement must be supported by sound scientific evidence. It is accordingly advisable for employers to obtain such advice.
The code requires employers to provide employees with information about, amongst other things, the nature of vaccines used in the country, the benefits associated with Covid-19 vaccines, the contraindications for vaccination and the nature and risk of any serious side effects.
One way to do this may be to make FAQ documents or fact sheets available to employees, in which rated, qualified and well-respected medical experts address questions such as:
- What does it mean that the Covid-19 vaccines used in South Africa have received approval for ’emergency use’?
- Are the vaccines ‘experimental’?
- Are the vaccines safe?
- Are the vaccines effective?
- What are the side effects of the vaccine and how common are these side effects?
- If a person has a comorbidity, is it recommended that they take the vaccination?
- How many deaths have been reported as a result of the individual having taken the vaccine?
How to deal with employees’ objections to vaccination
The OHS Direction emphasised that employers should recognise objections to vaccination on medical and constitutional grounds. It is accordingly advisable for a vaccination policy to make express provision for an objections process whereby employees’ concerns would be considered.
The Code (like the OHS Direction) recognises that some employees may refuse to vaccinate. In such cases:
- The employer must counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official; and
- If, after such counselling, the employee still refuses to vaccinate, the employer must take steps to reasonably accommodate the employee; provided that –
- Where the basis for the employee’s refusal to vaccinate is that the employee has a contraindication for vaccination (which has been confirmed by way of a medical certificate, or if deemed necessary, an evaluation conducted at the employer’s expense), the employer must accommodate the employee.
Where reasonable accommodation is not possible without causing unjustifiable hardship to the employer, then dismissal of the employee may be considered.
Workplace vaccinations remain a controversial topic in South Africa. Employers who have implemented (or who are still to implement) vaccination policies would do well to equip themselves with the necessary information, advice and supporting documents to justify their actions.
- Commentary by Chloё Loubser and Talita Laubscher of Bowmans.