The Department of Employment and Labour has gazetted the Code of Practice for managing exposure to Covid-19. This code will come into effect on the day that the State of Disaster ends and the purpose of this Code is to guide employers and employees in managing exposure to SARS-CoV-2 in the workplace by providing guidance to employers and employees in – ‘
- Conducting or updating a risk assessment in terms of the OHSA and the HBA in respect of SARS-CoV-2 exposure.
- Developing a plan to limit infection, transmission and mitigate the risks of serious illness or death on the basis of that risk assessment.
- Implementing the plan.
- Managing absence from work due to infection, isolation and adverse effects of vaccination.
- Seeking to accommodate employees who refuse or fail to vaccinate against SARS-CoV-2
While much of what is in the Code is similar to the Occupational Health and Safety Guidelines published by the Department in May 2021, what is new is the sections dealing with vaccination. This sections states:
12. Vaccination of employees
- Every employer must in accordance with the measures contemplated in section 5
- notify the employee identified in terms of section 6(1)(a) of the obligation to be vaccinated
- counsel the employee on the issues related to vaccines in section 7 (1)(c)
- permit the employee, at the employee’s request, to consult a health and safety representative, a worker representative or a trade union official
- give administrative support to the employees to register and to access their COVID-19 vaccination certificates on the EVDS Portal for SARS-CoV-215; and
- give the employee paid time off to be vaccinated and provide transport for the employee to and from the nearest vaccination site
- In giving effect to this Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate
- Should an employee suffer a vaccine adverse event that renders them unable to work, the employer must –
- on receipt of a medical certificate, give the employee paid time off to recover if the employee is no longer entitled to paid sick leave in terms of the BCEA or any applicable collective agreement; or
- subject to any regulations in respect of a COVID-19 Vaccine Injury No- Fault Compensation Scheme16, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993.
- 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
- If an employee produces a medical certificate attesting that an employee has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense
- If the employer accepts the medical certificate or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require the employee to be vaccinated
This seems to answer many of the questions raised by our clients with regard to being able to make vaccinations mandatory and how this should be implemented. There have been several recent cases both at Labour Court and in the CCMA which have ruled that making vaccinations mandatory is fair and that where an employee refuses to be vaccinated and cannot be accommodated that it is then fair to dismiss them following the retrenchment process outlined in section 189.