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Employers may now implement mandatory vaccination policies

An updated Consolidated Direction on Occupational Health and Safety (Directive) was issued on 11 June 2021 by the Department of Employment and Labour. Amongst others, it expressly permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines, which include a cautionary note to ensure that the rights of employees to bodily integrity and religious freedoms and beliefs are taken into account.

Webber Wentzel published an article titled Revised Covid-19 Direction on Health & Safety in the Workplace by Kate Collier, Shane Johnson, Heather Mudau which summarises the Direction. It is published below with the kind permission of Webber Wentzel.

​​A revised Covid-19 Direction on Health and Safety in the Workplace sets out the regulations on vaccines and guidelines for employers considering mandatory vaccinations of employees

The Minister of Employment and Labour has issued a revised Covid-19 Direction on Health and Safety in the Workplace. The Direction was signed by the Minister on 28 May 2021. In line with the previous versions of this Direction, it applies to all workplaces except mines, ships, boats or cranes and any other workplace which is regulated by a different direction on health and safety.

The provisions in the previous Direction (gazetted on 1 October 2020) largely remain intact in this Direction. The latest amendments largely provide regulations relating to Covid-19 vaccines and guidelines for employers who are considering mandatory vaccination of their employees. We summarise the key clauses of the Direction for employers below.

Definition of “Covid-19 vaccines”

The Direction defines “Covid-19 vaccines” as:

“a vaccine that has been scientifically evaluated and recommended by the WHO and approved by the South African Health Products Regulatory Authority to be effective in preventing severe disease and death, and likely to reduce SARS-CoV-2 viral transmission in order to contribute to herd immunity”

Employers must ensure that they comply with the provisions of the Direction discussed below.

Administrative measures

The employer must take steps to generate awareness and educate employees on the Covid-19 vaccine, including information on the:

  • benefits of the vaccine
  • contra-indications for vaccination
  • nature and risk of any serious side-effects (eg severe allergic reactions)

To compile this information, the Direction refers employers to the Frequently Asked Questions section on the National Institute of Health website.

In addition to awareness and education around the Covid-19 vaccine, employers must also provide administrative support to employees to register on the Electronic Vaccine Data System Registration Portal for Covid-19.

Employers must also provide employees with paid time off to have the vaccination on the allocated date and time. The employee will be required to provide the employer with proof of vaccination, particularly when it is scheduled to take place during working hours.

Symptom screening

The Direction confirms that the isolation procedures applicable to employees who present with Covid-19 symptoms at work does not apply to employees who present with symptoms for one to three days after having the Covid-19 vaccination.

If an employee is unable to work after having had the Covid-19 vaccine due to side-effects, the employee should be placed on paid sick leave. The employer may accept a Covid-19 vaccination certificate as proof of illness instead of a medical certificate.

Employers who are considering mandatory vaccinations for employees must comply with the following provisions of the Direction.

Risk assessment and plans for protective measures

Clause 3(1)(ii) of the Direction provides that the employer must undertake a risk assessment within 21 days of the commencement of the direction to determine if it intends to make vaccination mandatory. If the employer does intend to make vaccination mandatory, it must then identify which employees must be vaccinated considering risk of transmission due to the nature of their work or risk of severe Covid-19 disease due to age or co-morbidities. Clause 3(3)(c) makes it clear that even if vaccination is mandatory, such a policy will only be enforceable “as and when Covid-19 vaccines become available”.

After conducting the risk assessment, the employer must clearly formulate a plan (or amend an existing plan) that outlines the measures it intends to implement on mandatory vaccination of employees.

The plan must include the following elements –

The identification of the employees who will be subject to vaccination The process by which the obligations under the Direction will be complied with by the employer Whether the employer is planning to make it mandatory for identified employees to be vaccinated

If the employer decides to make vaccination mandatory for employees, its mandatory vaccination policy must state that employees will be notified of the following:

  • the obligation to be vaccinated once the vaccine becomes available
  • their right to refuse to be vaccinated on constitutional or medical grounds
  • their opportunity to consult a health and safety representative, worker representative or trade union official

If an employee refuses to be vaccinated on any constitutional or medical grounds, the employer should take the following steps:

  1. counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official
  2. refer the employee for further medical evaluation if there is a medical contraindication for vaccination
  3. if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

​A related article, An end to the debate: The government expressly permits mandatory workplace vaccination policies, published by Cliffe, Dekker Hofmeyr also provides assistance in understanding the essentials of the Direction.

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3 Responses to Employers may now implement mandatory vaccination policies

  1. Eugene 17 June 2021 at 1:44 pm #

    It is my opinion that an employer will risk unnecessary liability claims against them if they enforce the vaccination program on an employee and that employee present with serious side effects, or even death.

  2. Alan 17 June 2021 at 2:41 pm #

    Vaccine??????
    Some defintions from the Center for Disease Control

    Immunity: Protection from an infectious disease. If you are immune to a disease, you can be exposed to it without becoming infected.

    Vaccine: A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease. Vaccines are usually administered through needle injections, but can also be administered by mouth or sprayed into the nose.

    Vaccination: The act of introducing a vaccine into the body to produce immunity to a specific disease.

    Immunization: A process by which a person becomes protected against a disease through vaccination. This term is often used interchangeably with vaccination or inoculation.

    https://www.cdc.gov/vaccines/vac-gen/imz-basics.htm#:~:text=Definition%20of%20Terms,-Let's%20start%20by&text=Vaccine%3A%20A%20product%20that%20stimulates,the%20person%20from%20that%20disease.

    AstraZeneca Plc’s antibody cocktail was only 33% effective at preventing Covid-19 symptoms in people who had been exposed to the virus, failing a study that was key to the drugmaker’s pandemic push.
    The trial of 1,121 adult volunteers looked at whether the long-acting antibody combination could protect people who had recently been in contact with the SARS-CoV-2 virus in places like care homes. The company said it’s running other studies of the medicine that could help clarify the findings.

    https://www.houstonchronicle.com/business/article/Astra-s-Antibody-Cocktail-Fails-to-Prevent-16248650.php

  3. Manus van der Pluym 20 June 2021 at 10:33 am #

    This Corona virus vaccine is improperly tested especially when its testing is compared to other medicines that have an impact on the future health of every person to whom it is administered.
    when administering the vaccine there appears to be no question regarding other treatments the to be vaccinated person is following and other medicines being taken. One example is anti-depressant medicinal treatments.
    It is clear that vaccination does not prevent the illness nor does it protect the vaccinated from infecting other vaccinated or unvaccinated people.
    Mandatory vaccination infringes the rights of people to chose. The Politian’s have taken it upon themselves to play God!

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