South African workers refusing a vaccine and what employers can do

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A full breakdown of the consolidated directions on occupational health and safety measures in workplaces was gazetted by Minister Thulas Nxesi this week. The directive outlines a number of measures and factors that must be taken into consideration before South African companies introduce a mandatory vaccine policy, including consultation with labour unions and safety committees.

According to the department of employment and labour, employees can refuse to be vaccinated on constitutional or medical grounds and employers must provide sufficient alternatives for workers may who may refuse inoculation.

According to the newly published guidelines, “employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds. The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business.”

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Companies that do go ahead with a mandatory vaccination policy will need to provide transport to and from the vaccination site for their employees, assist workers with registering on the Electronic Vaccination Data System (EVDS) and offer paid leave for anyone experiencing vaccine side effects.

Employers will need to identify workers who could be possible superspreaders due to the nature of their work as well as older workers and those with comorbidities and sure they are vaccinated first, should they consent.

Employers must inform high-risk employees of:

  • Their obligation to be vaccinated as and when the vaccine becomes available.
  • The right to refuse to be vaccinated on constitutional or medical grounds.
  • The opportunity to consult a health and safety representative or trade union official.

Refusing a Vaccine

An employee who refuses to be vaccinated on constitutional or medical grounds can be counselled by the employer and referred for further medical evaluation should there be concerns around a contraindication for vaccination.

If, after counsel and further medical evaluation, the employee still refuses, it’s the responsibility of the company to “reasonably accommodate the employee in a position that does not require the employee to be vaccinated.” These employees can be given the option to:

  • Work offsite or from home
  • Work in isolation, away from other employees, within the workplace
  • Work outside of ordinary working hours
  • Be required to wear an N95 mask if coming into limited contact with other employees

“What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed on procedures between employers, their employer organisations and trade unions,” said Minister Nxesi.

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