GARDEN ROUTE DISTRICT NEWS - Labour Minister Thulas Nxesi gazetted a new directive on 11 June with regard to vaccination in the workplace, which effectively could see companies legally firing employees who refuse to be vaccinated.

However, the new Consolidated Occupational Health and Safety Direction also says that employers should find a reasonable resolution to accommodate those who refuse to be vaccinated on medical and constitutional grounds, said Nxesi in a statement a few days after the publication of the direction.

He said an employee may refuse vaccination on the grounds of the right to bodily integrity as contained in section 12(2) of the Constitution and the right to freedom of religion, belief and opinion, as in section 13 of the Constitution. 

An employee could also refuse on medical grounds where there has been an immediate allergic reaction to a previous dose or if an allergy to a component of the Covid-19 vaccine has been diagnosed.

Every employer that intends to make vaccination compulsory, first has to do a risk assessment in terms of the Occupational Health and Safety Act which states that it has to provide a safe working environment to employees and others who may be directly affected by its activities.

If the employer then wants to make vaccination mandatory, it must identify which of its employees will be required to be vaccinated - those whose work poses a risk of transmission or risk of severe Covid-19 disease or death due to their age or comorbidities.

Nxesi said that not every employee poses such a risk, such as people who work from home or whose work is such that they do not come into close working contact with other workers or the public.

Accommodating employees who legally refuse to be vaccinated, might include an adjustment that permits the employee to work off-site or at home or in isolation within the workplace, such as an office or a warehouse, or to work outside of ordinary working hours. "In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask," said Nxesi.

Difficulty foreseen for employers in dismissals

Amanda Smit, a local attorney specialising in labour law, said the direction is complicated in that the Occupational Health and Safety Act on the one hand places a responsibility on the employer to implement policies and procedures to ensure a safe working environment.

"The opposite side of the argument, however, is that our Constitution makes provision for every person in South Africa to have the right to make his own choice regarding medical procedures. I anticipate difficulty for employers to get past the Constitution if they want to dismiss employees for refusing the Covid-19 vaccine. It will, however, have to be tested in our labour courts before we can get decisive clarity on this."

She referred to Solidarity Union that has already announced in a media statement that they will approach the court if one of their members is dismissed on such grounds.

"There is currently a court case in New Zealand on this matter that has been placed on the urgent roll. It will be interesting to see how other countries deal with the issue, but in South Africa cases will of course be settled in terms of the South African law and our Constitution."

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