Over the last several weeks, Mandatory Vaccine Policies have been implemented by several health organisations including Discovery Health, Life Healthcare and Mediclinic. Many members have been querying how this would affect them. To provide members with guidance on this, we invited representatives from the Department of Employment and Labour, Cliffe Decker Hofmeyr, Discovery Health and Business Unity South Africa to weigh in. For those who couldn’t join the forum, we have summarised some of the key points.
- The Labour Directive on vaccination in the workplace is meant to supplement the Occupational Health and Safety Act and focuses on communicating with employees and organised labour – to encourage voluntary vaccination before considering mandatory vaccine policies. It has, however, been used as a catalyst for companies to start rolling out mandatory vaccination.
- From a legal standpoint, legislation lends itself to mandatory vaccines, however, there are currently no legal precedents, legal charters, or case law with regards to mandatory vaccines in South Africa – as such legalities are in unchartered territory. BUSA is in the process of approaching the high courts for legal clarification on vaccine mandates.
- Just as employees may refuse to be vaccinated, others may refuse to return to work unless their colleagues are vaccinated because they feel the work environment is unsafe – it’s, therefore, a balancing act.
- A thorough risk assessment that considers the rights of employees and the obligations of the employer to provide a safe work environment has to be conducted.
- It is beneficial to set up policy criteria before implementation, i.e. what percentage of employees need to be vaccinated, limitations on entry into a workspace, the process for applying for an exemption, employee engagement plan, etc. These criteria can then be used as a framework for extensive policy discussion with employees as buy-in will be greater if decisions are informed and substantiated and developed out of a risk assessment for the benefit of employees.
- All policies must contain an objections application process for those who want to be exempt from taking the vaccines. These objections should be handled on a case-by-case approach and employees should be accommodated as far as reasonably possible – this may include working from home, being accommodated into other roles, and so forth. A fully-fledged objections and exceptions process does not discriminate against individuals and may require a committee to deliberate on cases.
- With regards to testing, antigen testing may not be an adequate replacement for vaccines. If you get a negative test result, there is a margin of error and, as such, antigen test may not provide a fully safe work environment. Requiring PCR tests would likely be too expensive, and the costs would fall on the employer as outlined in Codes of Good Practice as well as the Occupational Health and Safety Act which requires employers to pay for any medical tests they require employees to undergo.
- It is important to build a positive and inclusive programme with employees.