As vaccination becomes more freely available in South Africa, questions arise such as can you make vaccination compulsory and can you dismiss someone if they refuse? Do you have to allow time off to get vaccinated, and what happens if an employee has an adverse reaction? These questions and many more are new to our labour law, and will be subject to litigation over the next many years.
In terms of the department of employment and labour’s latest regulations, the minister has recognised that employers may in terms of their own internal rules make COVID-19 vaccination compulsory.
Obviously, the compulsion must be subject to certain oversight, and must be reasonable in all circumstances. The employer would have to take into account their own operational requirements, and must be able to justify that in terms of these requirements, they would expect employees to be vaccinated against COVID-19.
Over and above this, each case must be carefully explored, discussed, and subject to proper consultation, taking into account the employee’s circumstances. These circumstances can include medical, religious, bodily integrity, and any other factor reasonably raised by the employee or the employee’s representative.
Obviously, each particular employer would develop a set of guidelines and rules which would be read with the disciplinary code and would be properly implemented after consultation with the employees or their representatives.
These rules must be made subject to the above-mentioned criteria, and would probably be differently implemented in accordance with the operational requirements of the position of the actual employee.
For instance, if a buyer for a company has the duty to travel abroad and can do so only if vaccinated, then there would be a compulsion to be vaccinated. It would be incumbent upon the employer to explore whether there are other ways of doing the job or whether an employee is willing to accept another position which doesn’t require vaccination.
It’s absolutely vital for every employer to read the regulation, and to advise all the necessary parties within the next three weeks of their intention to make vaccination mandatory and which employees will be affected.
Obviously, even once vaccination has been made mandatory, it would be subject to the employees being able to obtain the vaccination, and might require the employer to help obtain them. The employer’s policy will take into account various factors such as consultation with all the representatives at the workplace, and will respect bargaining council agreements and any other collective agreements with trade unions.
If there is an informal committee representing the staff and/or a workers forum, these bodies must also be consulted.
The minister of health has published draft regulations for the establishment of a no-fault compensation fund for injuries caused by the COVID-19 vaccination. The Vaccine Injury Compensation Fund will be established in terms of the regulations as an amendment to the regulations of the Disaster Management Act of 2002.
Although this compensation fund for vaccine injury hasn’t been formed yet, the various ministers involved are taking into account commentary from the public, and will be getting legal advice from parliament’s legal advisors.
The injury must be related to vaccination. An injured person may not institute a claim through the court process against the national or provincial government until the claim has been adjudicated by the relevant panel through the compensation fund.
Only if the person is dissatisfied with the outcome of the adjudication or the amount awarded can that person lodge an appeal, and the appeal must be determined by the relevant decision maker. Only after pursuing a claim with the scheme can a person look to the courts if that person is still dissatisfied.
Businesses are urged once again to warn their staff that protocols are in place, and breach of COVID-19 rules and regulations will lead to spread of infection and almost inevitably disciplinary action.
I’m involved in no less than a dozen cases where employers have reported and taken action against recalcitrant employees. It’s time, once again, to reiterate the fundamental, basic rules such as social distancing, mask wearing, and sanitising. Over and above this, any staff member exhibiting symptoms must report these symptoms to their health officer or senior management, and should immediately take sick leave.
The consequences of a staff member remaining silent could be loss of their position and more seriously, the spread of infection.
Employers will have to educate staff about the value of vaccination along with normal social distancing, masks, and hand sanitising. Education in these circumstances, I believe, will be the strongest factor in convincing all staff to get vaccinated.
A consolidated direction on occupational health and safety measures in certain workplaces was gazette on 11 June 2021. This contains new requirements with regard to vaccination.
It’s clear from this that an employer must give employees time off to be vaccinated. The employee may be required to provide proof of an appointment to be vaccinated. Time off shouldn’t be regarded as sick leave, but should be given as a form of special leave.
If there are negative effects from vaccination, the employer will grant paid sick leave in terms of the Basic Conditions of Employment Act. If the sick leave has been exhausted, there could be a claim in terms of the Compensation for Occupational Injuries and Diseases Act. Employees will produce the vaccination certificate thereafter, and a medical certificate if they’ve had complications.
- Michael Bagraim is an attorney specialising in labour law, and advises nationwide on the restructuring and management of labour forces. He is also a Democratic Alliance member of parliament.
