Lukholo Molefe Employment Lawyer February 2023 March 2023
Labour Lawyers attorney in Johannesburg Labour Law specialists #employment law
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Mandatory Vaccinations in the workplace
For an employer’s direction to be vaccinated against COVID-19 to be lawful and reasonable, it must comply with any employment contract or collective agreement and any applicable employment and safety laws (for example, the occupational health and safety Act the Employment Equity Act).
There are several factors taken into consideration in determining whether a direction to an employee is lawful and reasonable, including:
· the nature of each workplace;
· transmissibility of Covid in the specific workplace and in the community in which the business operates;
· the effectiveness of vaccines in reducing the risk of transmission;
· health and safety obligations;
· employee’s tasks and duties and the risks associated with their work;
· whether employees have a legitimate reason to be exempt from vaccination; and
· vaccine availability.
· Alternative arrangements
2. When will a mandatory vaccination policy be ultra vires?
Making vaccinations mandatory needs to consider the rights and freedoms of persons upon whom it affects, where the employer fails to properly assess the workplace and consult before implementation of the policy could have discriminatory effects.
Any COVID-19 Vaccination Policy implemented contains must contain well-drafted exemption clauses to cater for those with medical or other contraindications to mitigate the risk of discrimination claims.
3. Can I require my staff to advise me if they have been vaccinated or intend to be vaccinated? Can I ask them for proof?
It is not unlawful to enquire as to whether an employee is/is not vaccinated. However, information about an employee’s vaccination status is sensitive and protected by privacy laws. Employers need to ensure they comply with privacy obligations in collecting such information. Where an employee refuses, the employer should, in most cases, respect the employee’s privacy.
Where an employer is obliged to evoke mandatory vaccination protocols or has a Covid 19 policy in place or where required/authorised by law, the employer can direct an employee to provide information about their vaccination status. In such circumstances, employers can require an employee to disclose their vaccination status and require an employee to provide evidence of same or face dismissal for incapacity.
4. Can I dismiss an employee where they refuse to get vaccinated?
Suppose an employee refuses to comply with an employer’s lawful and reasonable direction to be vaccinated against COVID-19 without a legitimate reason. In that case, the employee may be subject to disciplinary action, including dismissal.
An employee may have a valid reason on the grounds of medical and health advice not to be vaccinated. Employers should seek appropriate evidence of the employee’s refusal to get vaccinated (for example, a medical report by a treating medical practitioner).
An employer’s decision to terminate an unvaccinated employee will only be valid to the extent that the original direction on the employee to be vaccinated was lawful and reasonable.
Before deciding to terminate an employee, an employer should ensure they comply with any disciplinary process and consultation requirements to mitigate a claim of unfair dismissal.
5. Is it discrimination to terminate an employee because they are not vaccinated?
Disability discrimination laws require employers to make ‘reasonable adjustments’ for people with a disability. What reasonable adjustments can be made will depend on the facts and circumstances surrounding the employee’s role. An example of a reasonable adjustment that could be made where an employee has a medical reason for not being vaccinated may be to require the employee to undergo periodic testing or another control measure such as wearing a mask.
However, there are circumstances where an employer is not required to accommodate an employee’s legitimate reason for refusal. It would cause an unjustifiable hardship on the employer, for example, employer’s in aged care facilities where the risk of allowing unvaccinated employees on site is too significant.
6. Can I prohibit contractors, customers or other attendees from attending my business premises if they are not vaccinated?
Generally, the owner or tenant of a premises can restrict entry to their premises or impose conditions of entry on those seeking access to those premises. However, in choosing whether to allow access or refuse entry to any person, businesses must ensure they do not breach any anti-discrimination laws.
7. Where can I get assistance?
Labour department portholes can be accessed by employees further.
Employment practitioners and consultants offer workplace advice to employers to ensure they adhere to public health orders/directions, registered agreements/workplace instruments and work health & safety regulations.