Articles

THE END OF AN ERA: Mandatory Vaccination Policy in the Workplace

The Direction requires an employer to identify, as part of assessing risk and their Covid Workplace Plan, employees who, by virtue of their risk of transmission through their work or their risk for severe Covid-19 disease or death, due to their age or comorbidities, ‘must be vaccinated’. According to the Direction, employers would need to assess their operations and workforce before they can identify employees who should vaccinate.

During 2020/21 the pandemic was at its peak and the implementation of the Direction into company safety policies was justifiable. According to sections 8 and 9 of the Occupational Health and Safety Act, employers are obligated to take reasonably practicable steps to provide and maintain a safe working environment. Arguably, employers would have satisfied this requirement by providing hand sanitizers, face masks, social distancing and remote working.  

Recently, Standard Bank withdrew its mandatory vaccination policy with immediate effect. This withdrawal was due to an estimated of 95% of their employees being vaccinated and the recent CCMA ruling against Standard Bank, which found in favour of the employee, holding that the dismissal of the employee for non-compliance with the bank’s vaccination policy, was unfair and unconstitutional.  

In the case of Tshatshu v Baroque Medical (Pty) Ltd [2022] JOL 54461 (CCMA), Ms Tshatshu, a Senior Inventory Controller at Baroque Medical (Pty) Ltd, was dismissed for operational requirements because of her non-compliance with the employer’s Vaccine Mandate Policy. In terms of clause 10 of the employer’s Mandatory Covid-19 Vaccination Policy: “Employees who refuse to be vaccinated will be in breach of Company Policy and their services may be terminated for operational reasons. There are no alternative positions or roles that do not require vaccination.” Ms Tshatshu stated that her reason for not vaccinating was due to a negative reaction she had to the flu vaccine 10 years ago, she provided proof of this from various doctors, but the employer decided to retrench her with no severance pay. Since the employer decided to retrench an unvaccinated employee, they had to prove that the dismissal was procedurally fair i.e., that they had consulted with the employee. Their Vaccine Mandate Policy, however, made it impossible to have followed Section 189 of the Labour Relations Act 66 of 1995 (LRA), as it stated that employees who refused to be vaccinated would be dismissed. Their consultations, according to the Commissioner, were therefore merely lip service. When making this decision, the Commissioner considered section 9 (equality), section 12 (Freedom and security of the person) and section 36 (limitation of rights) of the Constitution of the Republic, 1996. He further factored in the lack of reasonableness of the rule and the employer’s right to implement such policies. Concluding that the right to issue any law of general application in respect of Covid-19 vaccinations rests with government, the Commissioner pointed out that employers have no right to formulate a Covid-19 Vaccine Mandate Policy. Such policies are not only unreasonable, but they also have no place in our labour market. Finding that the dismissal of the employee was substantively unfair, the Commissioner awarded Ms Tshatshu compensation of 12 months’ salary. According to the Direction, the employer had to first determine whether the employee can be reasonably accommodated and whether or not her position required her to be vaccinated, failure to take these, and other reasonable steps such as conducting a Risk Assessment and Consultation as per the Direction, resulted in the dismissal being unfair.

The Minister of Employment and Labour published the Code of Practice: Managing Exposure to SARS-CoV 2 in the workplace, this was published on the 22^nd of June 2022. This Code replaced the previous Direction on the Occupational Health and Safety Measures, and it provides for the implementation of a mandatory vaccination policy by an employer, provided certain procedures are followed. In conclusion, the mandatory vaccine policy era appears to have ended largely because of the increase in vaccination rates. Though the recently published Code still encourages the implementation of this policy, it also offers factors to consider before the implementation of mandatory vaccination policy, such as conducting a risk assessment and a workplace assessment. The imposition of this policy will be placed under high scrutiny if it is used as a basis for dismissal while also considering the already existing factors considered for dismissal. Every employer should still have a risk management plan or policy, but such plan should be flexible so that it can be adjusted to changes in the prevalence of Covid-19 and its variants, the rate of infection and the severity of symptoms at any time. In a situation where vaccine mandates may still be justified, employers should carefully assess the matter and provide other alternatives before dismissing employees who refuse to be vaccinated