Employees can refuse enforced workplace vaccine on medical and constitutional grounds

A new consolidated Covid-19 Direction on Occupational Health and Safety in Certain Workplaces has been gazetted by Minister of Employment and Labour Thulas Nxesi.

According to the guidelines, employers should find a reasonable resolution that accommodates all parties should an employee refuse to be vaccinated on medical or constitutional grounds.

A key principle of the guideline is that employers and employees should treat each other with mutual respect.

“A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.”

Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the Covid-19 vaccine.

Employers are now required to include in their risk assessments whether they intend to make vaccinations compulsory.

The enquiry will be a three-part process that entails:

· Making the assessment while taking into account the operational requirements of the workplace,

· Identifying employees who will be required to be vaccinated should the employer decide to make vaccines mandatory. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe Covid-19 disease or death due to their age or comorbidities and,

· Amending its plan to include measures to implement the vaccination of those employees as and when Covid-19 vaccines become available in respect of those employees identified.

In addition, an employer may only make it an obligation once the employee becomes eligible for a vaccine and has been given a vaccination date.

Minister Nxesi says it is critical that a balance is found between the dictates of collective bargaining and the need to keep employees healthy and businesses running.

“The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions.”

Possible solutions to accommodate an employee who will not be vaccinated could include allowing the employee to work offsite; at home; in isolation within the workplace, such as an office or a warehouse; or even working outside of ordinary working hours.

In instances of limited contact with others in the workplace, the employee might be expected to wear an N95 mask.

Information obtained from: South African Government