Mandatory vaccination policies being reconsidered in South Africa

Jacqui Reed, Senior Associate in the Employment Law, Pensions and Incentives team in Johannesburg, South Africa was recently quoted in Netwerk24 on her views regarding the decision by many employers to abandon mandatory vaccination policies from their workplaces.

Are employers required to comply with any regulatory requirements prior to withdrawing the mandatory vaccination policy? Is it necessary to conduct a further risk assessment and consultation process?

The Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 took effect after the National State of Disaster was brought to an end with effect from 5 April. The Code of Practice replaced the previous Direction on Occupational Health and Safety Measures in Certain Workplaces, which was in effect from 11 June 2021 to 4 April 2022. Both the Code and the Direction make provision for the implementation of a mandatory vaccination policy by an employer provided certain procedures are followed, i.e. conducting a risk assessment and developing a plan based on that risk assessment. If the risk assessment indicates that it would be appropriate to implement a mandatory vaccination policy, then the employer is obliged to consult with the relevant stakeholders. Once the consultation period has concluded and the employer is comfortable that it would be appropriate having considered the employees' submissions relating to the implementation of the policy, to implement the policy, then it may do so. It will then be required to deal with individual objections to the policy and assess whether the objection is valid and whether it is possible to reasonably accommodate the employee. In circumstances where there is no valid objection, the employee may be dismissed.

Regardless of the status of the Code, which is still in effect, employers and employees remain obliged to comply with the Occupational Health and Safety Act and ensure a safe and healthy working environment as far as reasonably practicable.

Employers are permitted to introduce policies and procedures in accordance with their operational requirements and doing so does not constitute a change to an employee's terms and conditions of employment. Insofar as the mandatory vaccination policy, the law provided for an extensive consultation process before implementation, which is not the norm for all policies and procedures in the workplace. Given the sensitivity of the issue, the requirement to conduct an extensive consultation process is understandable and reasonable.

Whilst the Code does not make provision for consultation in the event that the mandatory vaccination policy is no longer applicable, it would be prudent for an employer to conduct a consultation process prior to doing so for the following reasons:

1. there remains an obligation to maintain and provide a safe and healthy working environment on an employer. If an employer implemented the vaccination policy on the basis that it is required to provide a safe and healthy working environment, it would need to be able to justify why it now believes the mandatory vaccination policy is not necessary in light of that obligation. It may be able to do so if the majority of the workforce is in vaccinated and the number of employees who have become seriously ill or have died since its implementation has reduced significantly as a direct result of its high vaccination rate;
2. there have been employees who have been dismissed for refusing to comply with a mandatory vaccination policy. The employer may need to be able to distinguish those employees and circumstances from current circumstances in the event that further disputes arise;
3. provision is made in the Code for employees to refuse to work in the event that circumstances arise which, with reasonable justification, appear to the employee / health and safety representative to pose an imminent or serious risk of their exposure to COVID-19.

Can an employee refuse to work where the mandatory vaccination policy has been withdrawn?

In circumstances where an employee refused to work on the basis that a withdrawal of the policy will result in an unsafe working environment, it would be important to be mindful of clause 15 of the Code which provides that employees may refuse to work in the event that circumstances arise which, with reasonable justification, appear to the employee / health and safety representative to pose an imminent or serious risk of their exposure to COVID-19. An employee who refuses to work is to inform the employer which must then consult with the appropriate stakeholders and endeavour to resolve the dispute. If it cannot be resolved, the employer is required to notify the inspector within 24 hours and advise the employee and relevant stakeholders that the inspector has been notified.

The effect of this provision is that where an employee can justify his / her refusal to work because the removal of the mandatory vaccination policy poses an imminent or serious risk of exposure, the employer will need to be able to provide a valid justification for its reasons for removal of the mandate.

Conclusion

In light of the significant easing of restrictions and the lifting of the National State of Disaster, it is probable that an employer would be able to justify the decision but it would be prudent to consult with employees before doing so.

For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact