Can employers force their employees to get vaccinated?
Can employers force their employees to get vaccinated?

South African is full on with regards to the roll-out of covid-19 vaccination. Although this is the case, the concerns and uncertainties about whether employers can force their employees to take the vaccine keep on growing.

Can my employer force me to take the vaccine?

The amended Occupational Health and Safety (OHS) in the Workplace Direction states that employees are allowed to refuse on constitutional grounds to get the vaccine. Employers can also make vaccination mandatory and base this argument on wanting to make the workplace a safe place.

On what grounds can employees refuse the jab?

Employees can decline to get vaccinated on constitutional grounds. This include the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a diagnosed allergy to an element of the COVID-19 vaccine.

Can employees get fired for refusing the vaccine?

The amended directive does not prohibit employers from dismissing workers who refuse the vaccine. It is however advisable to take thorough professional or legal advice because those types of dismissals come with a lot of complications. Employers should be mindful that taking the Covid-19 vaccine is not compulsory to any citizen of South Africa. Employers should also be careful to not cross the line between make vaccination mandatory (encouraging employees) and making it compulsory (forcing employees) for their employees. Companies come up with reasonable plans that will accommodates all parties when employees refuse to be vaccinated on medical or constitutional grounds.

How can employers ensure the safety of employees?

Employers should make it easy for employees to report if they are experiencing any Covid-19 symptoms or when they have tested positive. Employers are also obliged to fully explain the vaccine to their employees in full.

Do employees get paid for missing workdays to get vaccinated?

Employees are entitled to paid time off to get the Covid-19 vaccine but employers may require proof of the vaccination appointment.

In an attempt to provide a healthy workplace as required by the Occupational Health and Safety Act 85 of 1993, employers may feel the need to introduce a mandatory vaccine policy in order to get their employees vaccinated. However, there are quite a few challenges that an employers must be mindful of before introducing the said policy:

  1. Employers could well be responsible for commanding employees to be vaccinated if those employees go on later to become ill as a result of taking the vaccine.
  2. Employers must also have suitable data storage facilities to store and manage confidential employee records. Failure to have this can lead to breach of Protection of Personal Information Act, 2013 (POPIA).
  3. At this point it is also not clear if the government or private medical insurers fund the cost of the vaccine or will the employer be liable for the costs if it makes vaccines mandatory at its workplace.
  4. A company’s Health and Safety Committee has to be directly involved in the developing of any mandatory policy and must also consult with trade unions.

One cannot disregard the uncertainties around vaccinations. So the carrying out of this narrative by employers has to consider the risks involved, not only financial risks but risks concerning employee health as well. The introduction of measures to vaccinate the workforce should not be rigid, it should provide room for consideration of people’s believes and health statuses to avoid conflict between the employee and the employer.

Sources Consulted

https://www.cliffedekkerhofmeyr.com/en/news/publications/2020/Employment/Employment-Alert-9-December-2020-Can-South-African-employers-impose-mandatory-COVID-19-vaccination-policies-as-a-pre-requisite-to-return-to-work-or-as-a-precondition-for-employment-.html

https://www.gov.za/speeches/employment-and-labour-new-direction-regard-vaccination-workplace-14-jun-2021-0000

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