May employers dismiss their employees for refusing to be vaccinated against Covid-19?

12.10.2021
BackBusiness

South African employers are operating in economically dire times, often resorting to extreme measures in complying with Covid-19 Health and Safety regulations to ensure that their continued operations are as normal as possible.

Unfortunately, with the third wave of Covid-19 infections and talk of further hard lockdowns, employers are under immense strain to generate profits, or in many cases to simply keep their doors open. With South Africa’s vaccination process underway, many employers are enquiring whether they may insist that their staff be vaccinated when eligible. The Minister of the Department of Employment and Labour on 11 June 2021 issued an amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces. In terms thereof, companies that seek to institute a mandatory vaccination policy for their employees must first complete a risk assessment by no later than the 2nd of July 2021.

Employers in drafting their risk assessment must take cognisance of the company’s operational requirements, identify who would be instructed to be vaccinated should the company implement a mandatory vaccination policy, as well as take cognisance of the Occupational Health and Safety Act in ensuring that any such policy is in line with the Act and that the workplace continues to be as safe as reasonably practicable. Employers should go further and also draft a plan as to how the mandatory vaccination plan would be implemented and whom it would affect.  

It appears that through this amended directive the Department of Employment and Labour is attempting to throw employers a lifeline in allowing them to institute mandatory vaccination policies where such policies are objectively reasonable and necessary in terms of the employer’s operational requirements.

Naturally, employers will not be able to insist that employees be vaccinated until such time that the vaccinations are more readily available, and it is possible for the employees in question to be vaccinated. Employers should tread lightly as they will not be able to instruct employees to be vaccinated without justifying the need for vaccination in relation to the work environment, nature of work, and risk of exposure. It is likely that the CCMA and Courts will in the near future hear many cases for unfair dismissal and claims that such mandatory vaccination policies are unlawful and unconstitutional in terms of bodily integrity, as well as religious, cultural and medical considerations.

It is imperative that employers contemplating dismissing employees, who refuse to undergo vaccination, first consult with a labour law specialist. Dismissal should always be a last resort and employers should not dismiss employees who they are able to accommodate despite a refusal to be vaccinated, such as allowing staff to work virtually from home when possible. Every case should ultimately be determined on its own merits.

Contact Albert Mouton – Associate Attorney at Thomson Wilks inc, should you need assistance in drafting a risk assessment before the 2nd of July 2021, as well as to assist you when you seek to dismiss employees for non-compliance with your mandatory vaccination policy.

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