On 15 March 2022, the Department of Employment and Labour issued a Code of Practice on managing exposure to COVID-19 in the workplace (the Code erroneously states 15 February 2022 as the date of publication).

The New Code is to take effect on the date that the Declaration of a National State of Disaster lapses. However, on the same date, the National State of Disaster was extended to 15 April 2022. This means that the New Code will only come into effect once the National State of Disaster has ended. Until then, the current Consolidated Direction on Health and Safety in Certain Workplaces will remain in place.

However, the New Code does provide some indication and clarity on the question of mandatory vaccination and dealing with employees who refuse to be vaccinated.

What has stayed the same?

As with the Consolidated Direction, an employer is still required to do the following in preparation of a mandatory vaccination policy:

  •  Undertake a risk assessment, taking into account the relevant occupational health and safety legislation;
  •  Based on the risk assessment, identify any measures to be implemented in respect of the vaccination of its employees (and identify the dates by when employees must be fully vaccinated, which includes any booster doses);
  •  Consult on the risk assessment and policy with any representative trade union and any health and safety committee, or health and safety/employee representative, as the case may be; and
  • Make the risk assessment available for inspection by the above representatives and/or an inspector.

Employers are still required to educate employees on the vaccines. In this regard, employers are required to counsel employees on the nature of vaccines used in the country, the benefits associated with these vaccines, the contra-indications to the vaccine and the nature and risk of any serious side effects.

And finally, employees can still refuse to be vaccinated and there is a process for employers to counsel employees and refer employees for medical evaluation, if the refusal relates to medical contraindications to the vaccine.

What has changed?

Employers must now take measures to determine the vaccination status of their employees. Employers may require their employees to disclose their vaccination status and to produce a vaccination certificate. Insofar as a refusal or failure to be vaccinated is concerned, there are three key changes:

  •  There is no longer a statement of the grounds upon which an employee can refuse to be vaccinated;
  •  There is an obligation to take steps to reasonably accommodate employees who refuse vaccination (on any grounds); and
  •  If an employee produces a medical certificate attesting that an employee has contra-indications, and the employer accepts the medical certificate, or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications, the employer must accommodate the employee in a position that does not require the employee to be vaccinated.

There is no reference, at all, to constitutional grounds as the basis for refusal and it appears that the New Code recognizes that an employee can refuse vaccination on any ground. The wording of Clause 12(4) provides, without qualification, that:

“If an employee refuses to be vaccinated, the employer must-

(a)   counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official; and

(b)   take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.”

This appears to suggest that, in all circumstances no matter what ground of refusal is raised, an employer must attempt to accommodate an employee who refuses to be vaccinated.

Moreover, the New Code also suggests that an employer must still seek to accommodate employees who refuse or neglect to be vaccinated in accordance with the instruction to do so. This makes it doubtful whether employers can still rely on the two CCMA cases that upheld dismissals and suspensions of employees that refused to vaccinate despite being instructed to do so.

DMA – Code of Practice – Managing exposure to SARS-COV-2 in the Workplace – 2022