EMPLOYERS BEWARE: MANDATORY VACCINATION WORKPLACE POLICY

In recent weeks, two CCMA awards relating to mandatory COVID-19 vaccination policies in the workplace enjoyed significant media attention.

In Theresa Mulderji v The Goldrush Group (case number GAJB 24054-21), the CCMA found that the dismissal of an employee for refusing to get vaccinated against Covid-19, despite the employer’s adoption of a vaccination mandate policy, was substantively fair. The Commissioner found that the employee was indeed incapacitated due to her failure to get vaccinated and consequential refusal to participate in the creation of a safe working environment in accordance with the Act. Furthermore, the CCMA remarked that the company had prior to the implementation of its policy complied with the prescribed directive as well as consulted with employees and trade unions.

The CCMA, in Gideon J Kok v Ndaka Security and Services (case number FSWK2448-21), ruled that suspending an employee for refusing to vaccinate was fair and in line with the Occupational Health and Safety Act. This is because the Act places a corresponding duty on employees to cooperate with an employer to obey health and safety rules.

Many employers have mistaken the outcomes in these matters as the measure of what they may implement in their own businesses. However, it is important that employers understand that the findings in these matters are neither the final word on the issue nor do they set a precedent in respect of fairness of suspension or dismissal.

The authority of an employer to implement a mandatory COVID-19 vaccination policy in the workplace is regulated by the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces, as amended. The Directions require that every employer consider its general duties in terms of the Occupational Health and Safety Act which include the duty to provide a safe working environment for employees.

In order to comply with the Directive employers are required to:

✓ Undertake a Risk Assessment to identify employees who should be subject to a mandatory vaccination policy based on either risk of transmission of COVID-19 given the role of the employee within the workplace, alternatively, risk of severe COVID-19 disease or death having regard to the employee’s age or co-morbidities;
✓ Develop a plan based on the risk assessment and make that plan available for inspection;
✓ Consult with trade unions or health and safety representatives regarding the risk assessment and plan.
✓ notify employees of their right to refuse the vaccine either on constitutional or medical grounds.

Significantly, there is also an obligation on the employer to, where possible, reasonably accommodate employees who refuse the COVID-19 vaccine.

In summary, employers are cautioned against implementing mandatory vaccination policies on the strength of the above-mentioned CCMA rulings. Compliance with the provisions of the Directions is essential but does not guarantee a favourable outcome if challenged. Given that there are constitutional considerations, it is likely that the Constitutional Court will be the final arbiter on the issue.