Friday, July 1 2022

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Jacqui Reed, a senior partner in the Employment, Pensions and Incentives team in Johannesburg, South Africa, was recently quoted in Netwerk24 on her views on the decision of many employers to ditch the mandatory vaccination policies in their workplaces.

Are employers required to comply with any regulatory requirements before withdrawing the mandatory vaccination policy? Is there a need for another risk assessment and consultation process?

The Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 came into force following the end of the national state of disaster with effect from April 5. The Code of Practice replaced the former Directive on Occupational Health and Safety Measures in Certain Workplaces, which was in effect from June 11, 2021 to April 4, 2022. The Code and Directive provide for the implementation of a compulsory vaccination policy by an employer. provided that certain procedures are followed, i.e. carrying out a risk assessment and developing a plan based on this risk assessment. If the risk assessment indicates that it would be appropriate to implement a mandatory vaccination policy, then the employer is required to consult with relevant stakeholders. Once the consultation period has ended and the employer is satisfied that it would be appropriate, after considering employee comments on the implementation of the policy, to implement the policy, then the employer may TO DO. He will then have to deal with individual objections to the policy and assess whether the objection is valid and whether it is possible to reasonably accommodate the employee. In circumstances where there is no valid objection, the employee may be terminated.

Regardless of the status of the Code, which is still in effect, employers and employees remain obligated to comply with the Occupational Health and Safety Act and to provide a safe and healthy work environment to the extent possible. possible.

Employers are permitted to introduce policies and procedures in accordance with their operational requirements and this does not constitute a change in an employee’s terms and conditions of employment. With respect to the mandatory vaccination policy, the law provided for an extensive consultation process prior to its implementation, which is not standard for all workplace policies and procedures. Given the sensitivity of the issue, the requirement to conduct a broad consultation process is understandable and reasonable.

Although the Code does not provide for consultation in the event that the mandatory vaccination policy no longer applies, it would be prudent for an employer to conduct a consultation process before doing so for the following reasons:

  1. there remains an obligation to maintain and provide a safe and healthy work environment to an employer. If an employer were implementing the vaccination policy on the basis that they are required to provide a safe and healthy work environment, they should be able to justify why they now believe the mandatory vaccination policy is unnecessary in light of this obligation. It may be able to do this if the majority of the workforce is vaccinated and the number of employees who have become seriously ill or died since its implementation has dropped significantly as a direct result of its rate of high vaccination;

  2. there have been employees who have been fired for refusing to comply with a mandatory vaccination policy. The employer may need to be able to distinguish these employees and these circumstances from the current circumstances in case other conflicts arise;

  3. the Code provides that employees may refuse to work in circumstances which, with reasonable justification, appear to the employee/health and safety representative to present an imminent or serious risk of exposure to COVID-19.

Can an employee refuse to work where the mandatory vaccination policy has been removed?

In cases where an employee has refused to work on the grounds that removal of the policy would result in an unsafe work environment, it would be important to keep in mind Section 15 of the Code which provides that employees may refuse to work in where circumstances arise which, with reasonable justification, appear to the employee/health and safety representative to pose an imminent or serious risk of exposure to COVID-19. An employee who refuses to work must inform the employer, who must then consult the appropriate parties and endeavor to resolve the dispute. If it cannot be resolved, the employer is required to notify the inspector within 24 hours and inform the employee and relevant stakeholders that the inspector has been notified.

The effect of this provision is that where an employee can justify refusing to work because the removal of the mandatory vaccination policy presents an imminent or serious risk of exposure, the employer will have to be able to provide a valid justification. of his reasons. for the revocation of the mandate.

Conclusion

In light of the significant easing of restrictions and the lifting of the national state of disaster, it is likely that an employer would be able to justify their decision, but it would be prudent to consult with employees before doing so.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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