South Africa: mandatory vaccination policies in the workplace - have you done your risk assessment?

Employers who have not yet done a risk assessment, and who believe that a mandatory vaccination policy may be necessary and justifiable, should conduct a risk assessment as soon as possible to avoid either constructive dismissal claims or industrial action.

On 11 June 2021, the Department of Employment and Labour issued an Amended Consolidated Direction on Health and Safety (Amended Direction – https://www.gov.za/sites/default/files/gcis_document/202006/43400rg11128gon639.pdf) which sought to address the burning question of whether employers are permitted to implement mandatory vaccination policies in their workplaces.

The Amended Direction was the ninth amendment to the original Direction issued in March 2020, as a result of the commencement of the COVID-19 pandemic in South Africa.

The Amended Direction required employers to conduct a risk assessment 21 days from its issue, i.e. on or before 2 July 2021. The purpose of the risk assessment is to determine whether the employer intends to make vaccinations mandatory and if so, to identify those employees to be vaccinated.

The circumstances of the workplace, the efficient operation of the employer’s business and its operational requirements will determine whether an employer is able to justify the implementation of a mandatory vaccination policy. For example, where there are a large number of employees who are required to conduct their work in close proximity to one another because the nature of the work or the environment is such that social distancing presents a challenge, and / or where adequate ventilation may not be possible, the employer may be able to justify requiring employees to be vaccinated.

In circumstances where all employees are able to work from home, the employer may not be able to justify requiring employees to be vaccinated.

In circumstances where an employer is of the view that mandatory vaccinations in the workplace are justified, but has not yet conducted the risk assessment in this regard, the employer is encouraged to conduct the risk assessment as soon as possible. It may be prudent to provide reasons in the risk assessment for why the risk assessment was not conducted within the allocated time period in order to mitigate the risks associated with not doing so, which are set out below.

In the event that the employer does not conduct the risk assessment as soon as possible, it may expose itself to a claim for constructive dismissal. An employee may resign and argue that continued employment was rendered intolerable by the employer as a result of its failure to conduct the risk assessment and or develop the plan, both of which are necessary in order to implement a mandatory vaccination policy.

The employer may also expose itself to the risk of industrial action in the event that employees and their trade unions take the view that a mandatory vaccination policy constitutes a benefit to which employees are entitled.

In order to mitigate the above-mentioned risks, it would be prudent for employers who have not yet done so and who believe that a mandatory vaccination policy in the workplace may be  necessary and is justifiable, to conduct a risk assessment as soon as possible.

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