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Mandatory Vaccination Policies

It is public knowledge that the Department of Labour and Employment has issued a Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace under the Labour Relations Act. This new Code of Good Practice is set to replace the existing Covid-19 workplace rules in the light of the recent termination of the Declaration of a National State of Disaster. Experts at legal firm, Bowmans, claim that this amendment will assist employers who have implemented vaccination requirements in the workplace – or who intend to do so – to justify their requirements.

The new Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace includes all content of the earlier directions, however, significant amendments have been made. It is important to read the Code in its entirety to understand the exceptions, application and interpretation thereof fully.

In summary, the major elements of the new Code of Good Practice include the following:

  • Employers have an obligation under the OHSA to ensure a safe working environment for their employees as far as reasonably possible. Coronavirus is listed as a Hazardous Biological Agent (HBA) under the Occupational Health and Safety Act (OHSA). This places a legal responsibility on employers to limit the exposure to the infection and also mitigate the risk of the infection by SARS-CoV-2.
  • Employers must conduct a risk assessment to determine their obligations under the OHSA and the HBA Regulations. Following the assessment, a new plan to deal with safety measures should be developed and implemented, which can include the mandatory vaccination of employees. The Code of Good Practice now makes it an entitlement under the Labour Relations Act for employers to adopt mandatory vaccination policies.
  • Employers who employ less than 20 persons have other obligations and only have to take limited steps. For example, conducting a risk assessment, taking practical measures to mitigate the risk of infection, refusing employees with Covid-19 symptoms access to the workplace and providing ventilation in closed spaces etc.

In terms of mandatory vaccination policies, the employer must:

  • Notify the employee of the requirement to be vaccinated.
  • Counsel the employee on this requirement.
  • Allow the employee to consult a health and safety representative, a worker representative, or a trade union official.
  • Give administrative support in terms of registering for vaccinations and accessing the certificate portals.
  • Provide the employee with paid time off to have their vaccinations and provide transport to and from vaccination sites.

What if an employee refuses to be vaccinated?

  • Employers should counsel the employee and allow them to seek guidance from a health and safety representative, worker representative or trade union official.
  • Make reasonable accommodation for employees in a position that does not require the employee to be vaccinated.
  • Should an employee not be permitted to be vaccinated due to medical reasons, such as presenting with contra-indications for vaccinations, a valid medical certificate from a registered Health Care Professional must be produced to support this.
  • Lastly, The Code of Good Practice also allows employers to require workers to disclose their vaccination status and to produce vaccination certificates. However, this should be done in accordance with the Protection of Personal Information Act, 4 of 2013 (POPIA) requirements, policies and procedures adopted by the employer.

Contact Joubert & Associates for more in-depth information surrounding this topic. We can further assist in compiling a comprehensive personnel policy for your company.

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