50 questions and answers about mandatory COVID-19 vaccinations

President Ramaphosa says employees may refuse vaccination on medical and constitutional grounds. Mandatory vaccinations must balance the constitutional rights of the people with public health imperatives, efficient operation of the employer’s business and occupational health and safety laws which require a safe working environment.

COSATU didn’t believe either government or companies have the right to impose vaccines on people. Employers, it said, did not own the employees, there is only a contractual agreement with them.

South Africa’s constitution requires any limitation of rights – like a vaccine mandate – to be proportional to the purpose of the limitation – in this instance, protecting public health. The bigger the risk to public health, the larger the limitation may be on individual rights. Hence, so the argument goes, given the big risk to public health, a vaccine mandate is justified.

However, the Constitution also requires that the least restrictive means must be employed when limiting rights.

1. Can employees refuse to be vaccinated?
2. Can employers implement a mandatory vaccination policy?
3. Do you have to have a mandatory vaccination policy?
No. If you intend enforcing mandatory vaccination, then you would need such a policy.
4. Do you have a legal obligation to ensure a safe and healthy workplace for its employees?
5. Which constitutional rights apply to mandatory vaccinations?
The rights to bodily integrity, religion, belief and opinion.
6. Can you require that your employees disclose their health issues, comorbidities or are vulnerable employees?
Yes, in fact you must to be able to make a risk assessment and formulate a COVID-19 Plan. The risk assessment must identify employees who work in situations where:
- The risk of transmission is high due to the nature of employees’ work; and
- The risk for severe COVID-19 disease or death is high due to an employee’s age or comorbidities
7. Can you make blanket mandatory vaccination?
No. It needs to be specific to employees, and taking into account their objections.
8. Must I justify mandatory vaccination?
Yes, it must be a justifiable operational requirement.
9. Will the government make vaccinations mandatory?
Probably not.

Refusal to vaccinate
10. Must you tell your employees that they can refuse to take the vaccine?
11. What does the employer do for those who will not vaccinate?
- counsel the employee and, allow the employee to be guided by a health and safety representative, worker representative or trade union official;
- Refer the employee for further medical evaluation should there be any contra-indication for vaccination and
- Reasonably accommodate the employee in a position that does not require the employee to be vaccinated or
- Working from home;
- Working off-site;
- Working in isolation (at the workplace);
- Working outside normal working hours ; and
- Working while wearing a N95 mask.
12. What are the accepted reasons for refusing mandatory vaccination?
Religious conviction and health issues that prevent vaccination.
13. If the employee cannot be accommodated can you prevent the employee from coming to the workplace?
14. Would the employee be paid if you don’t allow him on the premises?
No, but you would need to continually evaluate the ability to accommodate, and allow the employee to return when it is safe to do so.
15. Can you instruct your employees to be vaccinated?
No, they can be encouraged to protect themselves and those around them.
16. Can you dismiss an employee for refusing to be vaccinated? 
17. Can you discipline an employee who refuses to be vaccinated?
18. Can you retrench an employee for refusing to be vaccinated? 
It is not advised. Take this route very carefully.
19. Can your terminate employment based on medical incapacity?
Yes. Don’t forget that there is a specific procedure for medical incapacity.

Mandatory vaccinations
20. Will vaccination be compulsory for some people?
Possibly for specific groups like healthcare workers and other professions who spend time indoors with other people.
21. Can you prevent unvaccinated customers and clients from coming in contact with your employees?
22. Can you force employees to be vaccinated under a mandatory vaccination policy?
No. Not on constitutional or medical grounds.
23. Can vaccinated and non-vaccinated employees be treated differently?
No. There can be no differentiation between vaccinated and non-vaccinated employees, other than the COVID-19 measures and reasonable accommodation.
24. Can I refuse to employ somebody who has not been vaccinated?
25. Is Discovery Limited making vaccinations compulsory for its employees?
Yes, from January 2022.
26. Will Discovery accommodate those with religious or health conditions preventing their vaccination? Yes.  They have to.
Logistics of vaccinations and absences
27. Do you have to help employees register for vaccination?
Yes. https://vaccine.enroll.health.gov.za/#/
28. Do you have to give employees paid time off to get vaccinated?
29. Do you have to give them transport to their vaccination?
Yes, if it is reasonably possible to provide transport to the site and time allocated to them.
30. If an employee misses their appointment and decides to go on a different date and time, do they require transport and paid time off?
Probably not transport, but the paid time off would remain.
31. Does it form part of sick leave or is it additional leave?
It forms part of sick leave.
32. Must that employee have a medical certificate to prove they went for the vaccination?
No. Proof of the vaccination will suffice.
33. What if the employee has run out of sick leave?
The leave is unpaid.
34. Do you have to give employees who suffer from the side effects of the vaccination sick leave?
35. How much side effect sick leave is required?
There is no limit.
36. Must I give paid sick leave if sick leave is exhausted, but the employee is still sick?
Yes, if you have made vaccinations mandatory.
37. Does the employee have to submit a doctor’s certificate to show that the side effects have made him too sick to work?
38. What proof do the employees need to submit for this paid sick leave?
A Covid-19 vaccination certificate issued by an official vaccination site.
39. If a Workman’s Compensation claim is made and vaccinations are mandatory, what are the payment requirements? 
The first three days of absence should be regarded as paid sick leave, and then a claim for compensation may be lodged in terms of the COIDA.

Refusal to work
40. If an employee believes that there is a COVID-19 risk, can they refuse to work?
Yes, but there must be an imminent and real risk of exposure to COVID-19.
41. What do you do when an employee tells you they won’t work because of the COVID-19 risk?
- Consult with the compliance officer, health and safety representative and try to resolve the issue.
- If it can’t be resolved, inform an inspector within 24 hours.   
- Comply with any prohibition issued by an inspector.
42. Can you incentivise an employee who refuses to work because of COVID-19 risk?
43. Can you discipline or dismiss an employee if they refuse to work because of the COVID-19 risk?
44. What happens if you do discipline or dismiss if the employee refuses to work due to COVID-19 risk?
They can refer a dispute to the CCMA.
45. What can the CCMA do?
Compensate up to 24 months remuneration.

Mandatory Testing of employees
46. Can you insist that your employees are tested for COVID regularly?
Yes, but it constitutes ‘medical testing’ in terms Employment Equity Act, and the employer would have to be able to establish that the tests are “justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job”
47. Can employees refuse to be tested?
48. Can they be barred from the premises?
No, accommodations would need to be made.

Vaccinations and POPI
49. How do mandatory vaccinations comply with POPI?
Vaccination and testing data constitutes ‘special personal information’ in terms of POPI. Employers may not process this information without the employee’s consent, and in accordance with POPI’s general requirements, including collecting only the minimum amount of information required for the relevant purpose; retaining the information only for as long as it is necessary to fulfil the purpose for which it was collected, after which it must be destroyed or anonymised; ensuring as far as reasonably possible that the information is accurate and updated when necessary; taking measures to secure the confidentiality and integrity of the data, and reporting any security breaches to the relevant employee; and informing employees of various aspects relating to the processing of their personal information.

50. Do you have to have a vaccination passport?
No, although there is talk that access to sporting events and entertainment would require one.

Mark - 13:26 @ common, Industrial Relations, Human Resources | Add a comment