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COVID – 19 Vaccinations in the workplace
26 April 2022  | Varushka Moodley
 
COVID – 19 VACCINATIONS IN THE WORKPLACE
IMPLEMENTING AN EMPLOYEE VACCINATION PROGRAM 

It has become more apparent that Covid vaccination policies are being implemented in some workplaces which will eventually expand, resulting in more workplaces implementing their own vaccination policies in their workplace. 
Employers should ask themselves is there a need for mandatory vaccinations in my business? 
It is advisable for an employer to conduct extensive research in order to produce a valid argument as to why vaccinations should be mandatory. 

Such research should include an investigation which must comply with sections 8 and 9 of the Occupational Health and Safety Act 85 of 1993 and must take "into account the operational requirements of the workplace, or the risk of their employees of severe COVID-19 disease or death due to their age or comorbidities".  

An employee may be exempted from such policy on the basis of the following two reasons: 
1.     Medical Condition: If an employee has a medical condition which will be negatively impacted by the taking of the vaccine. An employer can request an employee to conduct a full medical examination to provide the employer with a detailed report; and 

2.   Rights entrenched in the Constitution:
An employer must consider the rights of its employees to bodily integrity and freedom of religion, belief and opinion in terms of section 13 of the Constitution. 

RISK ASSESSMENT 
It is advisable to conduct a risk assessment. An employer must take into the consideration the risk of severe disease or death, notwithstanding a low risk of transmission in the workplace when conducting a risk assessment.  This will allow and employer to identify employees who should be vaccinated through risk of their transmission in the workplace. According to Regulation 3(1)(b) it sets out a risk assessment exercise, requires the employer to come up with a concept plan but should consult any representative trade union and any health and safety committee before enacting such policy in the workplace.  


CAN YOU DISMISS AN EMPLOYEE IF THEY REFUSE TO GET VACCINATED? 
If an employer dismisses an employee for operational or incapacity reasons on the basis of their unwillingness to be vaccinated, a disgruntled former employee might argue that such a decision discriminated against them on grounds of religion or health. 
An employer that has a mandatory vaccination policy in place or were authorised by law, the employer can direct an employee to provide information about their vaccination status. In such circumstances, employers can require an employee to disclose their vaccination status and require an employee to provide evidence of same or face dismissal for incapacity. 

An employer’s decision to terminate an unvaccinated employee will only be valid to the extent that the initial 
instruction for the employee to be vaccinated was lawful and reasonable. However, prior to deciding to terminate an employee, an employer should ensure they comply with their disciplinary process and consultation requirements to mitigate a claim of unfair dismissal.  

A STEP-BY-STEP GUIDE ON HOW TO IMPLEMENT A MANDATORY VACCINATION POLICY

STEP 1: COVERAGE 
Determine whether your business is covered by the Occupational Health and Safety Act.

STEP 2: RISK ASSESSMENT
Conduct a risk assessment at your business which will include a critical analysis of the workplace
 for the purposes of determining whether the implementation of a workplace policy on mandatory vaccinations is reasonable and justifiable according to the analysis. 
By conducting such analysis an employer would be able to identify the specific employees who will be of high risk of transmission by conducting the day-to-day tasks either in the workplace or even more importantly if their work requires visiting many clients. An employer will become aware of employees who must be vaccinated because of being a risk of transmission in terms of Covid disease or death due to their age and co-morbidities. 

When initiating the process, employees who intend to object to the implementation of the mandatory vaccination policy will most likely do so in the consultation process. The consultation process should be used for employers to understand the concerns which employees have so that they can be effectively and efficiently managed and, hopefully, disposed of at an early stage in the process. 
It is important for employers to not immediately ignore or decline any objections raised in terms of a of a mandatory vaccination policy being considered. 

 Such objections should be carefully considered and the views of both the employer and the employee should be recorded in writing in order to mitigate the risks associated with a dispute that may arise at a later stage.  

STEP 4: DECIDE WHETHER A POLICY IS NECESSARY AND JUSTIFIABLE
Is the policy viable and justified? 
This step will allow for the employer to develop a plan and or amend its existing plan.
 The plan must outline the measures that the employer intends
 to implement in respect of the vaccination of its employees. Very importantly, the plan must identify those employees that it considers to be vulnerable.  
The plan must then be made available for inspection by an inspector as contemplated in the Occupational Health and Safety Act as well as employees, their representatives, trade unions and health and safety representatives. 
After having a thorough plan to execute, the employer can now look back at the plan and decide if it is necessary and justifiable.

STEP 5: INFORM EMPLOYEES OF INTENTION TO IMPLEMENT POLICY
If the employer decides to implement the policy, all of its employees must be made aware of its intention to implement a mandatory vaccination policy and the date upon which the policy will come into effect. 
Employees should be given reasonable time, preferably not less than thirty days to consider the implementation of the policy.

 It is important for employers to note that this is not a requirement but rather preferable from a human resources perspective. 

STEP 6: INFORM EMPLOYEES OF THEIR RIGHT TO OBJECT
Once employees are made aware of the implementation date, the employer is required to inform employees of their right to object to being required to comply with the policy on constitutional or medical grounds. 
Any objections ought to be in writing by employees after having sufficient time to have considered the policy.

STEP 7: CONSIDER OBJECTIONS
An employer is obliged to consider these objections and take into account various factors including public health imperatives and the efficient operation of the employer’s business when making their determination. 

STEP 8: IF THE OBJECTION IS BASED ON A MEDICAL GROUND
If the employee refuses to be vaccinated on medical grounds, the employer should refer the employee for further medical evaluation to identify if there is negative reaction to the individual’s body if they were to take the vaccination. 
If such evaluation cannot be concluded for any reason, then, the employer should take the steps necessary to reasonably accommodate the employee.

STEP 9: IF THE OBJECTION IS BASED ON THE RIGHT TO BODILY INTEGRITY, RELIGION, BELIEF OR OPINION
If the employee refuses to be vaccinated on constitutional grounds, and has counselled the employee and contacted any representative of the employee then, the employer should take the steps necessary to reasonably accommodate the employee in a position that does not require vaccination. 

CONCLUSION:
Therefore, in order for the employer to come to a conclusive decision on mandatory vaccinations it would be most beneficial if the employer weighs up the rights of the individual employee versus the rights of the collective workforce. It is advisable to contact an attorney for a consultation before implementing a vaccination policy. 


 
 
 
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Tags: Labour