Covid-19 Vaccine Myth Buster Session

Vaccinations are a contentious issue which has stirred up mixed emotions and opposing views.  

While we support freedom of choice, it is clear the global trend is that travel opens as vaccination rates increase. As such, SATSA has chosen to provide vaccination information to members and support vaccination drives in a bid to drive our recovery and reignite the industry.  

We believe that it is incumbent on our industry to show travellers that South Africa is Travel Ready and that we take their safety and that of our staff seriously.  

Members have reached out to us for advice on staff vaccinations, understanding that to attract tourists the business might need to consider implementing a workplace vaccination policy. 

Together with our employment law partner, Solomon Holmes Attorneys, we have developed a guide to assist you with employer/employee rights regarding vaccinations.  

We are also considering whether to invest in a Workplace Vaccination policy template as well as providing vaccination stats per products at considerable expense to SATSA. We, therefore, ask that members indicate whether they feel these are something that would assist them by responding to this survey. Please click here to access and respond by COB 10 September 2021.   

Furthermore, we would like to invite you to a webinar,  “COVID-19 Vaccine: Myth Buster Session”.

Presented by Dr M Moodley MBCHB (UKZN) MBA (UCT), Director-Health Impact Assessment, Department of Health, this interactive session is aimed at dispelling myths and addressing vaccination hesitancy. This jam packed session, will provide all the credible information you need as well as an opportunity for you to ask questions about vaccinations and more.

Date: 20 September, 2021
Time: 14h00
Join the Meeting on Microsoft Teams, by clicking here.

Please see Solomon Holmes Attorneys Guide below: 

The Law 

  1. On 11 June 2021, the Department of Health and Labour (“DOL”) issued an updated Consolidated Direction on Occupational Health and Safety (the “Directive”) (please click here for a copy), which among other things, expressly permits employers to implement a mandatory workplace vaccination policy.   
  2. Employers may certainly implement such policy provided that they have conducted a risk assessment which indicates an operational requirement for such a policy and provided they comply with the guidelines contained in the Directive.   
  3. The Directive distinguishes between employers with 10 or less employees and those that employ more than 10 employees.  The requirements for employers employing less than 10 employees will be dealt with in a separate heading below.   
  4. Since South Africa does not have any legislation that specifically requires employees to be vaccinated, there remains uncertainty and controversy whether a mandatory vaccination policy is legally permissible.  This is yet to be tested by our Courts.    
  5. The DOL has cautioned employers intending to implement such policy to ensure that: 

    5.1 Employees’ Constitutional right to bodily and psychological integrity; life; freedom and security of person; freedom of religion, beliefs and opinion are taken into consideration; 
    5.2 Employees are free from unfair discrimination; 
    5.3 Such policy is in line with legislation relating to medical testing; and   
    5.4 Employees maintain the right to have their personal information treated as confidential. 
  6. The Directive stresses that employers and employees must treat each other with mutual respect. One needs to strike a balance between public health imperatives, the employees’ Constitutional rights and employers’ operational requirements.    


Employers’ obligations  

  1. In terms of the OHSA, employers have a legal obligation to protect their employees and to maintain a healthy and safe working environment, which an employer could argue would include a mandatory workplace vaccination policy.   
  2. Employers may argue that the right to life and the right to an environment that is not harmful to its employees’ and/or customers’ health or well-being can be used to support a mandatory workplace vaccination policy. 
  3. Having said this, should employers implement a mandatory vaccine policy, the employers must be aware that they may be liable for employees who later experience adverse health effects as a direct result of the vaccine.   


Government’s stance 

  1. The Government has indicated that it will not be implementing a compulsory vaccination programme for South Africans and vaccines will be administered by consent only. At this stage there is no intention of forbidding travel or participation in public activity for persons not vaccinated.   


Employees’ reluctance to be vaccinated 

  1. The most commonly cited fears or concerns against being vaccinated include inter alia: 

    11.1 The effectiveness of the vaccine; 
    11.2 Medical objections and safety concerns including long or short-term side effects or even death; 
    11.3 Fear or distrust of western medicine; 
    11.4 Having an underlying medical condition or comorbidity preventing them from being vaccinated;  
    11.5 Religious, cultural or philosophical objections.  By way of example, employees may be uncertain or object to the manner in which vaccines have been tested, manufactured or developed or may not want to consume any animal products which may be contained in the vaccine;  
    11.6 Not having enough information about the vaccine; and  
    11.7 Superstitious beliefs, fake news and conspiracy theories. 


Risk assessment  

  1. Prior to making a decision on whether to implement a mandatory vaccination policy, employers need to conduct a risk assessment.  
  2. Employers must bear in mind that they do not need to implement a mandatory workplace vaccination policy for all its employees.  It can simply categorize certain: 

    13.1Employees based on criteria such as age, health conditions or any other condition that may place the employee at a higher risk of complications or death; or  
    13.2 Roles, which pose a serious risk to public health and/or where the risk of transmission is high. 
  3. As part of the risk assessment, employers should:  

    14.1 Assess their individual and specific workplace/s and the duties and work environment of its employees taking into
    account the size and the nature of the workplace/s; 
    14.2 Identify the employees (if any) who are high-risk contacts;  
    14.3 Assess whether any employees have a co-morbidity which may render them more suspectable to serious risks or even death if they contract the virus; 
    14.4 Whether there is a genuine operational requirement for such policy. By way of example, if it would be a selling point to attract more business to state that all of its employees or those employees who are exposed directly to clients have been vaccinated, then this may constitute a genuine operational requirement.  Another operational requirement may be that clients or suppliers have expressed reluctance to conduct business with the employer on the basis that its employees are not all vaccinated. 
    14.5 Whether the purpose of the policy can be achieved by imposing less intrusive measures, if so, then the less intrusive measures should be implemented first.  By way of example, if the employee can be reasonably accommodated in a role that does not require the employee to be vaccinated, then this should be investigated further; and/or 
    14.6 The number of employees exposed to the public.  


Why should employers implement vaccination policies?  

  1. Employers should implement such policies to: 

    15.1 Inform employees of its stance regarding vaccination and the reason for it; 
    15.2 Enhance the health and safety of employees, which is in line with the duty of employers to provide a healthy and safe working environment.     


Unilateral change to terms and conditions of employment  

  1. It could be argued that the implementation of a workplace vaccination policy may constitute a unilateral change to terms and conditions of employment. Accordingly, to mitigate risk it is advisable for employers to consult with employees (and their trade union or workplace representatives, if any) prior to the implementation of such policy.   

    Steps following the risk assessment  
  2. The Directive provides for the following steps to following the risk assessment: 

    17.1 Update employers’ workplace plan or risk assessment to reflect the intention to make vaccinations mandatory for certain category of employees or all employees; 
    17.2 Identify and list the category of employees or roles that will be required to be vaccinated (“identified employees”); 
    17.3 Set out the manner in which employers will adhere to the Directive; 
    17.4 Detail the measures employers intend to implement with regards to the vaccination of identified employees; 
    17,5 Assist the identified employees to register on the EVDS registration portal; 
    17.6 Assist with booking an appointment to be vaccinated at a registered vaccination site, if required; 
    17.7 Provide identified employees with paid time off work to be vaccinated during working hours provided that the employee shows proof of vaccination; 
    17.8 Personal information relating to vaccination records or history must be kept confidential; 
    17.9 Educate, create awareness and provide identified employees with information on the vaccine including on the risks or any side effects; 
    17.10 Where reasonably practicable, provide transport or transport fees to and from the vaccination site; 
    17.11 Allow identified employees sick leave or paid time off work should they suffer side effects after having received the vaccine alternatively, submit a claim on behalf of the employee in terms of COIDA.   
  3. Identified employees must be notified: 

    18.1 Of their right to refuse to be vaccinated on medical and/or on Constitutional grounds; 
    18.2 The obligation to be vaccinated as and when the employee is eligible to be vaccinated; and 
    18.3 The opportunity for the employee to consult with a representative whether it is a trade union or worker representative.   


Managing an employee who refuses to be vaccinated or is uncertain whether to be vaccinated 

  1. The employer must remain sensitive to the concerns raised by the employee and properly investigate the validity and/or reasonableness of the concerns raised taking into consideration the evidence produced by the employee. 
  2. The employer may counsel the employee and invite the employee to consult with their trade union or workplace representative. 
  3. Where the objection is on medical grounds, refer the employee to a medical practitioner for advice or for a medical evaluation at the employer’s cost. 
  4. Take steps to reasonably accommodate the employee in a role that does not require the employee to be vaccinated. For purposes of the Directive, “reasonable accommodation” means modifying or adjusting the role or working environment that will allow the identified employee to remain in employment. For example, if the employee is able to work remotely; not have contact or have limited contact with employees or clients or is able to work outside ordinary working hours, then these factors should be investigated.  
  5. The concerns raised must be balanced against the risk and impact of COVID-19 in the workplace and the rights of all employees to a healthy and safe working environment.   


What remedies are available to employers should an employee unreasonably refuse to be vaccinated in terms of its mandatory workplace vaccination policy 
 

  1. If identified employees who refuse to be vaccinated, following a consultation process: 

    24.1 Does so without valid and reasonable justifications;  
    24.2 Cannot perform their duties without being vaccinated whether for example being vaccinated is an inherent job requirement or a business requirement; or  
    24.3 Cannot be reasonably accommodated elsewhere in the workplace,  


their employment may be terminated.   

  1. It is still uncertain under which ground the employee’s employment may be terminated. It is arguable whether it may be terminated for: 

    25.1 Operational requirements;  
    25.2 Incapacity; 
    25.3 Misconduct, in particular insubordination for failure to abide by company policy. 
     
  2. Dismissal should be the last resort. Each case should be considered on a case-by-case basis. It is advisable to obtain legal advice on which route to follow to avoid an unfair dismissal dispute and/or unfair discrimination claim (based on disability, age, and/or religion or belief).   
     

Can an employer provide incentives to employees who receive the vaccination 
 

  1. Employers may provide incentives to employees to encourage them to receive the vaccination. However, for the sake of fairness and so as to avoid a claim for unfair discrimination, employers must ensure that the incentives are also received by employees who have justifiable and valid objections to receiving the vaccination.   

The Covid-19 vaccine injury no-fault compensation scheme (“VIC Scheme”)  
 

  1. Government established the VIC Scheme on 22 April 2021. The purpose of this Scheme is to compensate persons (including dependents) who suffer harm, death, loss or damage as a result of receiving the Government approved vaccine at an approved Government vaccination site.    

Employers employing 10 or less employees 

  1. Employers with 10 or less employees need only comply with Directive 12 as contained in the Directive.  Essentially these employers need to develop a basic plan for the phasing in of their employees to the workplace and to ensure that all the relevant health and safety protocols are in place.       

Conclusion  

  1. Given the conflicting rights and obligations and potential legal risks in imposing a mandatory workplace vaccination policy, employers will need to balance its health and safety obligations with the Constitutional rights of their employees.  
  2. The Directive allows for mandatory vaccination, provided that employers have conducted a risk assessment and complied with the guidelines contained in the Directive as elaborated on above.  Employers should seek specific legal advice before implementing a mandatory workplace vaccination policy or dismissing an employee who refuses to be vaccinated. 

Should you require any assistance or further advice, please contact Solomon Holmes Attorneys as follows:  

Theresa Achada 
+27 11 646 4235 
theresa@solomonholmes.co.za  

Looking forward to hearing from you.  

Kind regards,
Hannelie du Toit