It cannot be denied that COVID-19 has served as a disruptor in the labour context by presenting employers with entirely novel challenges. Many of these challenges have come with legal implications that have been wide-ranging and complex as South African labour laws have been ill equipped to deal with pandemics.
With the number of infections having decreased, and the moving of the country to Level 1, this has resulted in many employers encouraging their employees to return to work after a prolonged period of remote working.
We know that employers must provide a safe working environment in terms of the Occupational Health & Safety Act. But what exactly are the employers’ rights and what demands can the employer make on employees in implementing and managing the containment of the COVID-19 pandemic?
Can an employer demand that an employee roll up his/her sleeve for the vaccine?
Implementing a mandatory vaccination policy is not straightforward. Employers are obliged to do a risk assessment, to identify employees who must be vaccinated, and to develop a vaccination plan and appropriate measures to implement the plan.
Courtesy of Discovery Health we have included an implementation overview of a mandatory policy which is based on the following principles:
Balance the rights of all employees
The process to be followed will include but is not limited to informing the employees; consulting with the employees; accommodating the employees where applicable and reaching an outcome.
The employer is to inform employees of the mandatory vaccination policy and approach and request formal objections (medical / religious) and motivation for objections.
The employer will then consult and actively engage with employees to understand the reason/s for the objections fully – information and access to experts will be provided.
Options will be explored for possible reasonable accommodations which includes but is not limited to screening through testing (PCR); wearing N95 mask; alternate role; isolated workspace; working from home.
The outcomes that could emanate from the process include employee accepting the employer’s mandatory vaccination policy; employee is accommodation; employee enters industrial relations process and there is a potential termination of employment.
Although a mandatory policy may be justified in certain workplaces, it remains a matter that conjures a mixture of emotions and as such it is imperative that a thorough risk assessment is conducted prior to any policy implementation.
Tiffany Reed: HR, SDF & EE Consultant - Compliance Hub