Workplace vaccination mandates remain legal, despite the national State of Disaster now being behind us, write practitioners at Bowmans.
Chloё Loubser and Talita Laubscher write in Business Tech that this is considering the fact that such policies were implemented in line with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction), which automatically ceased to be in force and effect when the State of Disaster ended.
However, although the OHS Direction is no longer in force, the law still permits vaccination requirements at the workplace, they said. The primary basis upon which employers may implement vaccination requirements at the workplace is the Occupational Health and Safety Act (OHSA), which has been in force since long before the OHS direction, Loubser and Laubscher said.
“In terms of sections 8 and 9 of the OHSA, an employer has a legal duty to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees and others who are directly affected by its activities. It is not only the employer that has this duty – under section 14, employees are also under a legal duty to take reasonable care for the health and safety of themselves and others.”
In addition to the HBA Regulations, the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace is now in force. This Code is a guideline in interpreting “an employment law” (including the OHSA). The Code echoes the provisions regarding vaccination policies that existed in terms of the OHS Direction. They write that workplace vaccinations remain a controversial topic in South Africa. Employers who have implemented (or who are still to implement) vaccination policies would do well to equip themselves with the necessary information, advice and supporting documents to justify their actions, they said.
Code of PracticeOHSA act85of1993
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CCMA again rules in favour of employers over mandatory vaccinations
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Mandatory jabs will survive constitutional test, argues Cheadle
COVID-19 vaccinations should be mandatory in South Africa