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COVID-19 vaccination could be compulsory at workplace

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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.

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COVID-19 denialists cause headache for doctors

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Though the fourth wave of COVID-19 has been mild, those who deny they have the virus have caused a headache for doctors because invariably, they help it to spread.

Experts are aware that many didn’t test for COVID-19 as it might have ruined their holiday. It wouldn’t have been a problem if they had isolated themselves, they say, however, many chose to ignore their symptoms, spreading the virus further.

“Denialists are a big headache,” says Dr Solly Lison, a Cape Town-based family physician, “so ventilation and small groups are essential. Having a window open when you are driving is also crucial.”

Lison has seen statistics indicating that the number of new cases has been declining at a slower rate in the Western Cape than it did in Gauteng. “Maybe that’s because people from Gauteng were here in the Western Cape [for their holidays],” he says.

Hatzolah’s statistics show that the number of new cases has been progressively decreasing over the past four weeks in Gauteng. In the week of 10 December 2021, 714 new cases were recorded, while 63 have been registered this week.

Currently, Hatzolah has 174 active cases, six COVID-19 patients in hospital, and 16 COVID-19 patients on home oxygen. Most of its cases have been occurred in the 20 to 60 age group.

“From what we are seeing at the moment, the symptoms seem to be a lot milder than previous variants,” says Darren Kahn, the executive general manager of Hatzolah Medical Rescue. “We do notice that vaccinated patients [who land up on oxygen] are certainly coming off oxygen a lot quicker than those who haven’t been vaccinated. But in general, people are certainly not as ill as they were previously.”

Kahn believes many haven’t joined the Hatzolah programme during this wave because they aren’t so sick.

“Omicron, which dominates in South Africa, is highly transmissible but less virulent, causing far less morbidity and very low actual direct mortality,” says Professor Efraim Kramer, a leading international expert in emergency medicine with a specialty in mass gatherings. “It will, as expected, spread globally, which is good because it gives those infected a natural immunity without severe illness.

“Therefore, with Omicron, we are learning to live and cohabit with it, like every winter flu. Of those who do get infected, some are mildly symptomatic, others are asymptomatic, but both spread the virus,” he says.

“The only large factor is vaccination, and that’s a personal choice. So, should we all carry on as normally as we can with Omicron, with or without the virus, and get on with our lives? Yes. It’s not a case of denying it, it’s a case of living with this uninvited guest in our daily lives.”

Dr Daniel Israel, a family practitioner in Johannesburg, says, “The Omicron variant peaked in Gauteng over the holidays, and we saw larger numbers than we had in the third wave. That proves the contagiousness of it. From what we are seeing as GPs, serious patients and admissions have been few and far between. Our practice alone has had three admissions, two of which were unvaccinated.”

He and Lison agree that many didn’t test because they didn’t want it to ruin their holiday.

Lison puts this down to the cost of the tests and the many false negatives recorded. He says the latter is a result of “people immediately testing after being in contact with somebody who had COVID-19. That’s the wrong thing to do. You’re going to get reliable positive results only on day five or six.”

Doctors agree that the wave is dissipating.

“The epidemic curve should reach baseline within the next 10 days to two weeks in Gauteng, and perhaps slightly later in the Western Cape and KwaZulu-Natal,” says Professor Barry Schoub.

Schoub, who chairs the Ministerial Advisory Committee on COVID-19 Vaccines, says the fourth wave was almost entirely driven by the Omicron variant in South Africa and ranked as the most extensive in terms of numbers of individuals infected, but it was significantly milder than preceding waves.

He says more than 90% of severe cases of COVID-19 in the fourth wave were in unvaccinated individuals. He and other experts agree that though Omicron is a vastly milder variant, it’s not harmless, especially for the unvaccinated.

Says, Lison, “They aren’t getting the chest infections to the degree they did before, and they are feeling better quicker.”

“Hospitals were much busier in December 2020,” says Lison. “There were many more PUIS [persons under investigation] who were dropping oxygen levels at that time. [Now] we don’t have to ensure that they get oxygen. They are coping better.”

Lison agrees that “people aren’t testing” when they show symptoms, and are often just isolating. He’s concerned that “people aren’t covering their noses” and that neck gaiters are “useless”.

“It stops you spitting as you speak, but you will get infected through it, and you will pass the infection through it as well. You need to wear a minimum three-layer mask covering your nose.”

The outlook for 2022 with regard to new variants is unclear, Schoub says, but it’s reassuring that “the great majority of the South African population do have antibodies to the virus, and this partly contributed to the relative mildness of the fourth wave. Hopefully, this will also contribute to ameliorating the effects of subsequent variants which may arise in the course of the year.

“Unfortunately, more than 50% of individuals in South Africa still haven’t been vaccinated. It’s imperative that every effort needs to be made to increase vaccine coverage in the population if we hope to bring the pandemic under control.”

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From pandemic to “twindemic” as global cases soar

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As South Africans heave a sigh of relief at the improving COVID-19 situation, other nations are recording record infection levels, reporting new variants, and even worrying about the rise of a “twindemic”.

Although Israel has been mustering record morbidity levels amid the Omicron-driven wave, new coronavirus guidelines for Israeli schools came into force on the weekend with vaccination rates no longer a factor in whether classes can meet in person.

The country had been adopting a “traffic light” plan, in which the vaccination rate of each class determined if students attended school in-person or remotely.

A bigger stir has been caused by a woman in Israel being diagnosed with “flurona” at the start of January. However, this condition has been around for at least two years. Flurona is just the term for having COVID-19 and flu at the same time.

Strict measures to control the spread of coronavirus were expected to prevent flu transmission, which appears to have largely held true for 2020. Efforts to track flu cases face challenges, as flu tests are scarce and the illness can be confused with others, including COVID-19.

Israel is noticing flu spikes this winter after historically low case levels last year. After hitting record lows as coronavirus surged, flu cases in the United States (US) are rising this year. Europe’s flu season, meanwhile, is just starting.

Although Australia successfully contained outbreaks of coronavirus, about 86 000 of the 1.1 million cases it has amassed since the beginning of the pandemic have occurred in the past two weeks. It’s now getting close to attaining record levels of COVID-19 infections following the rapid spread of the Omicron variant.

Several countries in Europe have already achieved that feat. On Wednesday, 12 December, daily cases in Germany (80 000) and Bulgaria (7 062) hit record levels, while Turkey logged a record level of more than 74 000 COVID-19 cases on Tuesday.

In contrast, on 12 January, the United Kingdom (UK) reported that COVID-19 cases fell nearly 45% from the previous week in what was the biggest drop since the arrival of Omicron. Professor David Heymann, an epidemiologist from the London School of Hygiene and Tropical Medicine, claimed that the UK would be the first country in the northern hemisphere to tame the pandemic.

The picture isn’t so rosy in the US, where COVID-19 hospitalisations reached a record high on Monday, as a surge in infections strained health systems in several states. On Tuesday, the Indiana health department reported that more people were hospitalised with COVID-19 in its state than at any other point in the pandemic, and Oklahoma reported record-high numbers of new COVID-19 cases on the weekend.

Faring north, the Canadian province of Quebec, facing a new wave of infections, has announced plans to impose a “health tax” on residents who refuse to get the COVID-19 vaccination for non-medical reasons.

In terms of new variants, a Cyprus researcher recently discovered Deltacron, a reported new variant of COVID-19. It apparently combines the Delta and Omicron variants.

And, according to scientists in France, the new B.1.640.2 variant, named IHU, could be stronger than the Omicron variant. IHU has been detected in a vaccinated man who travelled to Cameroon, the host of this year’s Africa Cup of Nations. Researchers say this doesn’t mean IHU originated in the central African country.

Confirmed cases of COVID-19 have passed 310.5 million globally, according to Johns Hopkins University. The number of confirmed deaths has now passed 5.49 million. More than 9.46 billion vaccination doses have been administered globally, according to Our World in Data.

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‘It’s about respect,’ couple says on seven decades of marriage

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Israel and Vera (nee Wilkov) Bulafkin were high-school sweethearts when they first fell in love, and it has remained a romance for the ages as they celebrated their 70th wedding anniversary last week.

“Israel is 92 [born in 1929] and Vera is 91 [born in 1930],” says their son-in-law, Stanley Pincus. “Israel is from Krugersdorp and Vera from Randfontein. They met at Krugersdorp High School in Standard 6 [Grade 8]. It was love at first sight, and they got married on 6 January 1952 at the Berea Shul in Johannesburg.”

Israel is a pharmacist who ran a pharmacy called Medicine Chest in Northcliff. Vera worked with him throughout the time that they ran that business until they retired some time ago. They lived in Krugersdorp all their lives until they moved to Johannesburg about two years ago to be with their children. They have three children, Helene Pincus, Alan Bulafkin, and Malcolm Bulafkin (all married), eight grandchildren (four of whom are married), and three great grandchildren.

The couple say the secret to a successful marriage is “essentially to respect each other. Try not to argue much, but if you have an argument, don’t go to bed until you resolve the issue. Always put your spouse first!”

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