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Code strengthens employers’ right to request employees’ vaccination status

A new Code of Practice reaffirms employers’ right to introduce vaccine mandates and tightens the grounds on which employees may refuse to be vaccinated.

Employment and Labour Minister Thulas Nxesi gazetted the “Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace” on 15 March after consultations with Nedlac.

The code is set to replace the existing Covid workplace rules when the state of disaster is expected to be lifted on 15 April.

Click here to download the code. (The department has acknowledged that the date of issue, 15 February 2022, is incorrect.)

The code takes the rights and obligations of employers and employees, which were set out in rules Nxesi implemented in terms of regulations under the Disaster Management Act, and makes them rights and obligations under the Labour Relations Act instead.

Although the code largely replicates the directions issued in 2021, it has a few additions, particularly when it comes to vaccination.

The code expressly provides for mandatory vaccinations in the workplace. This is important, because many employees and workplaces that have not yet adopted mandatory vaccination policies, on the basis that these may become defunct when the state of disaster is lifted, are likely to do so now, say Bradley Workman-Davies and Kerry Fredericks of Werksmans Attorneys.

“Whereas the directions [published by the Department of Employment and Labour] allowed employees the right to refuse to be vaccinated on the basis of constitutional or medical grounds, the Code of Good Practice refers generally to an employee’s refusal to be vaccinated, but only requires the employer to make reasonable accommodation for such refusal where the employee produces a medical certificate attesting to the employee having contra-indications for vaccination – and the employer accepts such medical assessment or has such assessment confirmed at its own expense.

“As such, it appears that the Code of Good Practice would be less generous to employees if they appeal to a non-medical objection to vaccination,” Werksmans said.

In terms of mandatory vaccination policies, the code replicates the requirements of the directions in that if there is mandatory vaccination for any category of employees, the employer must:

  • Notify the employee of the need to be vaccinated once the vaccine becomes available for that employee;
  • Counsel the employee on these issues and allow the employee to consult a health and safety representative a worker representative, or a trade union official;
  • Give administrative support to register for and access vaccination certificate portals; and
  • Provide paid time off for vaccination and provide transport to and from vaccinations sites.

The code also states that employers may now require workers to disclose their vaccination status and produce vaccination certificates.

The processing of this information must be done in accordance with the relevant Protection of Personal Information Act requirements and any POPIA policies and procedures adopted by the employer, said Werksmans.

If an employee refuses to be vaccinated

According to the code, if an employee refuses to be vaccinated, 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
  • Take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

If an employee produces a medical certificate attesting that he or she has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation, at the employer’s expense.

If the employer accepts the medical certificate or the medical evaluation confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require him or her to be vaccinated.

Important aspects of the code

Werksmans said other important aspects of the code are:

  • It recognises that the Regulations for Hazardous Biological Agents (HBA) under the Occupational Health and Safety Act (OHSA) list the coronavirus as a hazardous biological agent, classed as Group 3. As such, it places legal responsibilities on employers to limit the exposure and mitigate the risks of infection by SARS-CoV-2.
  • All employers are recognised to have direct and positive obligations under the OHSA to take steps to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to limit or mitigate the hazard or potential hazard. Employers must also 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 their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety.
  • Employers who employ less than 20 persons have to take only limited steps. They must undertake a risk assessment and take reasonably practical measures to mitigate the risk of infection or transmission. If an employee has Covid-19 symptoms, they must refuse to allow the employee to access the workplace and isolate the employee and provide closed spaces with reasonable ventilation.
  • Employers must conduct a risk assessment to determine their obligations under OHSA and the HBA Regulations. The risk assessment must lead to a new or an amended plan to deal with safety measures, which can include the mandatory vaccination of employees.
  • The protective measures adopted by an employer must be applied in respect of all workers, including employees, contractors, self-employed persons or volunteers.

The Department of Employment and Labour said the minister will issue occupational health and safety regulations to supplement the code “in due course”.

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