Vaccinations – compulsory or not?

March 18, 2022

The time for debating whether the Covid-19 vaccination is compulsory or not for employees is over. Not only is Covid-19 vaccination compulsory at the discretion and request of employers, vaccination status of all employees is now required where employers deem this essential to preventing the spread of Covid-19.

This is the strong message to come out of the new “Code of Good Practice: Managing exposure to the SARS-COV-2 (virus responsible for causing Covid-19) in the workplace, 2022” regulations issued by the Department of Employment and Labour and published on 15 March 2022 (full document available here). These regulations will become effective on the date the Declaration of the National State of Disaster lapses, expected soon, and employers are weighing up their options and strategy.

President Cyril Ramaphosa rates vaccination as our most important defence against Covid-19. “The further easing of the remaining restrictions will require that we increase the rate of vaccination among South Africans. The vaccine has been shown to significantly reduce severe illness…If we are all vaccinated, we can turn our energy, resources and effort to rebuilding our economy and creating much-needed jobs,” he stressed in his address to the nation on 22 March 2022.

The new Code guides employers and employees in conducting a risk assessment of Covid-19 exposure in the workplace (in terms of the Occupational Health and Safety Act and Hazardous Biological Agents Regulations) and developing a plan to limit infection and transmission. Employees are required to comply with their employer’s plan for protective measures, which may include being vaccinated. Employers may also require employees to disclose their vaccination status and to produce a vaccination certificate.

Other measures of protecting people will remain in place, such as wearing of masks and other PPE (where appropriate), social distancing, barriers, ventilation, handwashing, sanitising hands and disinfecting surfaces.

Where employers have determined that vaccination is part of their risk assessment and plan, employees must be:

• Notified of the obligation to be vaccinated.

• Counselled on the issues related to vaccines.

• Allowed to consult a health and safety representative, worker representative or trade union official if they wish.

• Assisted to register for and access their Covid-19 vaccination certificates on the EVDS portal.

• Given paid time off to get vaccinated and provided with transport to and from the nearest vaccination site.

“If an employee refuses to be vaccinated, the employer must counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official; take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated,” states the Code.

Employees may submit a medical certificate stating any contra-indications for vaccination. In this instance, the employer may send the employee for medical evaluation for confirmation at the employer’s expense. Where the medical certificate is accepted, the employee must be accommodated in a position that does not require them to be vaccinated.

It is worth noting that several employees have been fired from major South African companies for refusing to be vaccinated against Covid-19, decisions upheld by the CCMA where procedural requirements were in order. Increasingly, companies are introducing mandatory vaccination policies as the only truly effective way to prevent the spread of Covid-19. Also, where this applies to existing employees, it will apply to prospective employees too.

Johnny Goldberg, CEO of Global Business Solutions (GBS) and labour analyst said in his presentation on the legal lowdown of Covid-19 at GBS’s Annual Employment Conference on 16 March 2022: “The overriding issue is that medical science still indicates that you are much better protected, regardless of variant, if you are vaccinated than unvaccinated. This is why other countries like Europe and the UK can open up their economies, because they have such a high percentage of vaccinated citizens in those particular countries.”

John Botha, COO at GBS and a specialist in workforce strategy, transformation and planning, summed up the challenges of compulsory vaccination well: “If you as an employer are approaching this as a task, a tick box, you're going to get push-back from employees because it's going to create distance, resistance, and people are going to feel it's imposed on them. If you approach it as a leader, with an empathetic, engaging and authentic approach, seeking collaboration and a proper outcome, your disputes and resistance will be significantly less.”

Sean Permuy, chief commercial officer at Pple Group adds, “At Pple Group, we strive to provide an integrated and responsive service offering through meaningful and sustainable co-sourcing. This means staying abreast of new legislation and ensuring our people meet the changing needs of the workplace.”

We will let President Ramaphosa have the last word on the matter: “Once more, we are all called upon to play our part – to get vaccinated as we embark with hope and determination on a new era in our fight against the pandemic.”