File picture: Reuters
IF COMPANIES follow all the guidelines, your boss could make it mandatory for you to get vaccinated against Covid-19.
The legal pathway has been created for employers to make it mandatory for staff to be vaccinated before returning to the workplace on a full-time basis.
The recent announcement that more than a million South Africans in the age bracket of 35-49 had registered to receive the Covid-19 vaccine could see them returning to the workplace on a full-time basis.
The Department of Employment and Labour has set out guidelines that serve as a directive for employers. Getting vaccinated remains voluntary, but if an employer does a risk assessment at the office, staff could be forced to get the jab.
Minister of Employment and Labour Thulas Nxesi said these new directives were crucial for staff and bosses: “What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions.”
A woman who works in the tourism industry said she was anxious as her bosses were yet to confirm their policy on the vaccine. But she said vaccines could be mandatory at their business. Choosing to remain anonymous, she said: “My job is not on the front line and I am not really in contact with people and so I don’t see why a vaccination has to be mandatory for someone like me who works behind the scenes.”
She added: “I had a casual chat with our general manager and he said he has the power to say 'yes' or 'no' and 'I have the right to make it mandatory' and then I asked what if we don’t get vaccinated and the response was 'then you probably won’t have a job'.”
An executive in ENSafrica law firm’s employment department, Lauren Salt, said that the risk assessment that companies need to do is not just to force staff to get vaccinated: “The risk assessment is mandatory, regardless of whether you are going to have a vaccination policy. The direction says … employers must do this risk assessment and at the back of that amend their workplace plan which should already be in place.
“All employers should be doing this, it’s up to them to implement a vaccination policy. Should their risk assessment show its required then they can implement a mandatory vaccination policy.”
She emphasised that employees could still object to getting vaccinated: “The guidelines recognise there must be a balancing act between competing rights to maintain business operations, but for people to refuse to be vaccinated.”
She added: “If someone was excluded from the workplace for whatever reason they would be suspended. So they wouldn’t be entitled to perform their duties and then the question arises whether that suspension is fair.”
She said if an employer deems a vaccination important to its operations and staff object, there was a process that can be followed that would lead to retrenchment or dismissal. If the company is unable to reasonably accommodate a staff member who doesn’t want to be vaccinated then a dismissal process is inevitable.
A partner in the employment and health and safety department at law company Webber Wentzel, Dhevarsha Ramjettan, said: “If someone refuses to take the vaccine ... that's a constitutional objection. Once a person refuses, whether it's reasonable or unreasonable, you can’t force them. There must be education and information provided ... employers can try to reasonably accommodate that employee into another position.”
She added: “Operational requirements would be looked at ... but you can be retrenched based on not being able to perform a duty.”
Issues could arise on both sides of the vaccination debate. Staff who are vaccinated could force their employer to make it mandatory for everyone at the workplace to get vaccinated, claiming their health and safety is at risk, while those against vaccinations could also insist on their rights being enforced.
The legal landscape is changing and Ramjettan said: “I foresee issues arising out of the mandatory vaccination question in the future. This is a quickly developing area of our law and changes may occur all the time based on legal challenges and further guidelines that may be issued by the Department of Labour or the national Department of Health. This is a very fluid and dynamic landscape at the moment.”