Last week's gazetting of regulations to allow employers to make COVID-19 vaccination compulsory, are not a blanket permission, writes labour attorney Michael Bagraim. It might also involve the employer having actively source vaccines.
Bagraim writes:
In terms of the Department of Employment and Labour’s latest regulations, the Minister has recognised and understood that employers may in terms of their own internal rules make COVID-19 vaccination compulsory. Obviously, the compulsion must be subject to certain oversight and must be reasonable in all circumstances.
The employer would have to take into account their own operational requirements and must be able to justify that in terms of these operational requirements they would expect employees to be vaccinated against COVID-19.
Over and above this, each specific case must be carefully explored, discussed and subject to proper consultation taking into account the employees circumstances. These circumstances can include medical, religious, bodily integrity and any other factor reasonably raised by the employee or the employees’ representative.
Obviously, each particular employer would develop a set of guidelines and rules which would be read with the disciplinary code and will be properly implemented after consultation with the employees or their representatives. These rules must be made subject to the above-mentioned criteria and would probably be differently implemented in accordance with the operational requirements of the position of the actual employee.
For instance, if a buyer for a company has the duty to travel abroad and can only do so if vaccinated then there would be a compulsion to be vaccinated. It would be incumbent upon the employer to explore whether there are other ways of doing the job or whether an employee is willing to accept another position which doesn’t require the vaccination.
It is absolutely vital for every employer to read the regulation and to advise all the necessary parties within the next three weeks of their intention to make the vaccinations mandatory and which employees will be affected. Obviously, even once the vaccinations have been made mandatory it would be subject to the employees being able to obtain the vaccination and might require the employer to help them obtain same.
The employers policy will take into account various factors such as consultations with all the representatives at the workplace and would respect bargaining council agreements and any other collective agreements with trade unions. If there is an informal committee representing the staff and or a workers forum these bodies must also be consulted.
Michael Bagraim of Bagraim & Associates in Cape Town is the Democratic Alliance’s shadow Minister of Labour.
Full Gazette on the Legalbrief website
SEE ALSO FROM THE MEDICALBRIEF ARCHIVES
New regulations for employers on COVID-19 obligations in workplace
SA government can and should compel vaccinations — De Vos
Mandatory COVID-19 vaccination policies entail ‘considerable legal risk’