South Africa: can employers dismiss employees who are not vaccinated?

Recently, there have been media reports in South Africa that Sasol, one of South Africa’s largest employers, intends to request approval for the mass vaccination of its employees and service providers in anticipation of a planned shutdown event which requires more than 20 000 people on site over a period of 23 days. The purpose of this request is to prevent a potential super spreader event. According to media reports, some employees and community members have described Sasol’s stance on vaccinations in the workplace as “corporate bullying”. In a recent statement issued by Sasol, it confirmed its commitment to providing a safe and healthy working environment whilst respecting the rights of individuals to choose whether to be vaccinated or not. Employees that will be participating in activities on site during the shutdown period are expected to submit either proof of vaccination or a negative Covid-19 test result not older than 7 days prior to commencement of the shutdown activities, and to be repeated during the shutdown period every 7 days. Responsibility for payment for such tests remains a subject of discussion. It has not, therefore, implemented a mandatory vaccination policy.

The South African government’s position as expressed by President Cyril Ramaphosa is that no one will be forced to get the COVID-19 vaccine. However, on 11 June 2021, the Department of Employment and Labour promulgated an Amended Consolidated Direction on Health and Safety (Amended Direction) that provides for the implementation of a mandatory vaccination policy by South African employers as long as certain requirements are fulfilled. These include:

1. Conducting a risk assessment to determine whether it intends implementing a mandatory vaccination policy and, if so, identifying those employees who must be vaccinated due to various risk factors;
2. Developing a vaccination roll-out plan outlining the measures the employer intends to implement in respect of the vaccination of its employees;
3. Consulting on the risk assessment and the plan with any representative trade union or any health and safety committee or representative;
4. Making the plan available to an inspector designated in terms of section 28 of the Occupational Health and Safety Act, a trade union representative, the health and safety committee or a health and safety representative.

Unlike South Africa, several jurisdictions around the world, where the vaccination programme is at an advanced stage, have made vaccinations compulsory in certain sectors. The United Kingdom has made vaccinations mandatory for care home workers with effect from October 2021. France, Italy and Greece have made vaccinations mandatory for health workers. The United States Department of Veteran Affairs mandated that its health care workers are vaccinated and Canada is making vaccines mandatory for all its federal workers by September 2021. There have been reports that CNN in the United States dismissed three unvaccinated employees who attended the workplace in circumstances where a mandatory vaccination policy for those attending the workplace has been implemented.

Inevitably, the question that arises is whether a South African employer, who has implemented a mandatory vaccination policy, is entitled to dismiss an employee who fails or refuses to be vaccinated.

The Amended Direction provides that a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business. This clearly indicates that employers are obliged to balance all of these competing rights and considerations before taking any decisive action.

Employers are obliged to notify those employees that are identified for mandatory vaccination in its risk assessment and vaccination roll-out plan that they are entitled to refuse vaccination on medical (immediate allergic reaction of any severity to a previous dose or a known diagnosed allergy to a component of the COVID-19 vaccine) or constitutional (the right to bodily integrity in section 12(2) of the Constitution and the right to freedom of religion, belief and opinion in section 13 of the Constitution) grounds.

The Amended Direction further provides that where an employee refuses to be vaccinated on a constitutional or medical ground, the employer should:

1. Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
2. Refer the employee for further medical evaluation should there be a medical contraindication to the vaccine;
3. If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

“Reasonable accommodation” is described in the Amended Direction as being any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. It incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities. This might include an adjustment that permits the employee to work off-site or from home or in isolation within the workplace (such as working outside of ordinary office hours) or a requirement to wear a N95 mask.

The Amended Direction does not provide employers with any further guidance as to what steps should be taken where an employee fails and or refuses to be vaccinated.

It does appear, on the face of it, as if employers will be permitted to dismiss employees who refuse or fail to be vaccinated in circumstances where the objection is not based on a valid medical or constitutional ground and where they cannot be reasonably accommodated by the employer. However, employers are cautioned against implementing a process which could result in an employee’s dismissal for failing or refusing to vaccinate in the absence of taking considered legal advice as it is always necessary to consider each case on its own merits.