South African companies that plan to implement a mandatory Covid-19 vaccination policy have several legal obligations to meet before firing an employee for refusing to get the jab, says Labourwise founder Jan Truter.
Financial services group Discovery recently announced it would institute a mandatory vaccination policy for its 12,950 employees and all suppliers who work in its building effective from 1 January 2022.
The company maintained it was legally and morally obligated to implement the policy and that its approach was in line with major multinationals, including Google, Facebook, Netflix, Walmart, and Disney.
Truter said that although mandatory Covid-19 vaccinations in the workplace in South Africa may be justified in certain circumstances, it remains a highly emotive matter.
“The most controversial issue in relation to mandatory vaccination appears to be the extent to which employees may rely on their constitutional rights not to be vaccinated, in particular freedom of religion, belief, or opinion.
“Constitutional rights are not absolute, though. In some cases, these rights clearly need to yield to the rights of others,”
“An employer has a legal obligation to ensure the health and safety of its employees, as well as members of the public with whom its employees interact.”
However, Truter warned that the pre-dismissal considerations that apply in the case of mandatory vaccinations appear to be significantly more onerous than the considerations that apply in most other situations where the termination of employment is considered.
He provided a list of guidelines that employers should follow before dismissing an employee for refusing to take a Covid-19 vaccination.
10 steps before considering dismissal for vaccine refusal
1. Perform a Covid-19 risk assessment
This will determine whether a mandatory vaccination policy is necessary and to identify employees who work in situations where:
The risk of transmission is high due to the nature of their work.
The risk for severe Covid-19 or death is high due to an employee’s age or comorbidities.
2. Develop a vaccination plan or adjust your existing Covid-19 plan
3. Educate employees about vaccines and provide them with more information
Relevant information can be found in the vaccine FAQ section of the NICD’s website.
4. Assist employees with registering for vaccination on the EVDS portal
Registering on the health department’s Electronic Vaccination Database System (EVDS) allow South Africans to book a time and select the vaccination site where they would like to receive their vaccine.
5. Give employees paid time off to be vaccinated
If you implement a mandatory vaccination policy, you may not withhold pay or force employees to take leave without pay.
6. Place employees who suffer from vaccine side effects on paid leave
Employees who suffer from side effects after taking the vaccine should be given sick leave. If their sick leave is exhausted, they may qualify for further paid time off.
7. Keep employees informed on vaccination issues
This includes notifying them about:
The obligation to be vaccinated and by what date.
The right to refuse to be vaccinated on constitutional or medical grounds.
The opportunity to consult with a health and safety representative, worker representative or trade union official.
8. Counsel employees who refuse to be vaccinated on any constitutional grounds
Talk to employees and allow them to seek guidance from a health and safety representative if requested. Refer the employee for further medical evaluation if they refuse to be vaccinated based on a medical condition.
9. Explore alternative arrangements
Dismissal should only be a last resort. The employer should attempt to accommodate the employee in a position where they do not require the vaccine.
Possible options to consider include letting the employee:
Work from home
Work in isolation (at the workplace)
Work outside normal working hours
Work while wearing an N95 mask
10. Follow the correct procedure for dismissals
If all other options have been exhausted, Truter advised against disciplinary action. Instead, he said to deal with the dismissal as one of “operational requirements” or “incapacity”.
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