Many organisations have shied away from implementing vaccination policies or other processes that relate to COVID-19, in the hope that the national state of disaster will lapse and all the rules and regulations surrounding it, suspended or just disappear. Sadly such regulations and directions provided little clarity or guidance to mandatory employee vaccination and isolation within the workplace and it ultimately resulted in a balancing act of various conflicting rights and obligations. However, the Department of Employment and Labour has recently set the tone for the way forward and companies can expect vaccination policies and the like to remain present and relevant beyond the end of the pandemic.
It is a known fact that once the national state of disaster lapses, all the rules and regulations surrounding it will also be lifted and no longer be applicable. This includes the Directions on Occupational Health and Safety Measures in Certain Workplaces published on 29 April 2020 (with subsequent amendments) and the relevant Regulations published on 29 April 2020 by the Minister of Cooperative Government and Traditional Affairs (with subsequent amendments), which have attempted to provide guidance to employers and employees on issues of vaccination, isolation, personal protective equipment, labour conflicts, and more.
However, the Department and Employment and Labour published the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, on 15 March 2022 (the “Code”), in order to ensure that measures to mitigate COVID-19 risks in the workplace, will survive the lapsing of the national state of disaster. Thus the Code will come into effect upon the date of the lapsing of the national state of disaster. The reason for this, the Code expressly states, is that “there remains an ongoing need to prevent and mitigate the risk associated with SARS-COV-2 exposure in the workplace”.
By and large, the provisions of these Regulations and Directions remain the same, and the Code serves as a consolidated guideline of the various provisions therein, with certain changes taken into account.
A particularly interesting development from the previous Directions is the fact that the Code allows employers to require employees to disclose their vaccination status and to produce their vaccination certificates. Such information is considered to be special personal information in terms of the Protection of Personal Information Act 4 of 2013 (“PoPIA”), for which a higher level of protection is awarded due to the sensitive nature of the information. Employers were faced with challenges in securing this vital information when confronted with COVID-19 issues in the workplace. The Code has now closed this gap and employers will be able to request such information from their employees, however, it must still be processed in accordance with the provisions of PoPIA.
The Code makes no mention of the right to freedom of belief, opinion, or religion, or bodily integrity as grounds for refusal to be vaccinated, compared to its predecessors. This signals that non-medical grounds for refusal will carry less weight, if any at all. The Commission for Conciliation Mediation and Arbitration (“CCMA”) recently made several findings in a few matters concerning refusals to vaccinate. Despite the varying merits in each case, it made findings in favour of the employer in each instance. However, these do not constitute precedent as the CCMA is only a dispute resolution body whilst we await the guidance of a court of law.
How does the Code apply?
The Code applies to all workplaces, except those excluded in terms of Section 1(3) of the Occupational Health and Safety Act 85 of 1993, such as mines and mining areas or works. These excluded workplaces will only need to comply with Section 18 of the Code, which relates to the refusal by an employee to be vaccinated under circumstances where the employer has implemented a mandatory code of practice requiring such employees to be vaccinated.
Furthermore, employers with less than 20 employees will only be required to comply with certain measures of the Code to mitigate these risks. Nevertheless, these employers will still be required to undertake a risk assessment of the workplace.
The Code requires any person interpreting employment law (including conciliators, arbitrators, and judges) to take the Code into account in any matter to which it finds application.
Lastly, an employer may depart from certain provisions of the Code which are non-obligatory, and such a departure may be justified in appropriate circumstances, however, an employer must be able to demonstrate justifiable reasons for doing so.
Whilst the Code is a progressive attempt at providing guidance to employers, especially beyond the lapse of the national state of disaster, its predecessors will remain the authoritative guidelines for now. Since the Labour Court’s finding in the Solidarity matter, many employers might now rather consider implementing an Admission Policy instead of a Mandatory Vaccination Policy. The former will allow employers to bar unvaccinated employees and members of the public from entry to the work premises, as opposed to requiring such individuals to be vaccinated. However, regardless of the title given to the policy (whether it be a Mandatory Vaccination Policy or an Admission Policy), its nature will ultimately depend on the content and the language used therein. Whether this workaround is the solution, still remains to be tested by the courts in a definitive judgement.
Author: Rudi Byleveld