Michalsons is a member of the Lexing Network, an international network of lawyers dedicated to digital and technology law. The Lexing Network produces Lexing Insights, a collection of views from digital and tech law attorneys from around the globe. We share our South African perspective on ‘Enabling business in a post coronavirus world’.
Like most countries, South Africa continues to suffer under the pandemic. With a delayed vaccine rollout programme, employers are not yet ready to receive employees in the workplace. The Department of Labour published a guideline for employers who want to have a compulsory vaccine policy.
The pandemic in South Africa
As COVID-19 continues to plague the world for a second consecutive year, employers across the globe have responded by realigning their business environments to enable business continuity. Barring companies that fall within the scope of essential services, many organisations have adopted work-from-anywhere policies enabling thousands of employees to maintain a living despite varied stages of a national lockdown.
The Government has also rolled out a national COVID-19 vaccine programme. The programme will take place in 3 phases to provide vaccinations to a minimum of 67% of the population. While South Africa is still on phase 2 of its vaccine rollout programme, many employers have long opened doors to receive staff again.
The Department of Labour’s directive to combat COVID-19
In the wake of the pandemic, the Department of Labour published a directive aimed at employers and provides measures to prevent and combat the spread of COVID-19 in certain workplaces.
In a new regulatory development in June 2021, the Department gazetted a consolidated directive on occupational health and safety measures during COVID-19 (1). The directive includes a guideline for employers who intend to make the COVID-19 vaccination compulsory for staff. Conciliators, arbitrators, and the courts may also refer to the guideline to determine the fairness of a mandatory vaccination policy and support its implementation.
The guideline protects three interests:
- Public health requirements,
- The constitutional rights of employees, and
- The efficient operation of the employer’s business.
Guidelines for employers who want a compulsory vaccine policy
Employers who decide to make the COVID-19 vaccination compulsory for employees should adapt their policies to adhere to the guideline. The Department provided a few recommended actions that employers should take:
- Identify employees who should receive the vaccine. For example, consider staff who may be susceptible to contracting COVID-19 because of age, a pre-existing medical condition or co-morbidity, or the nature of their work.
- Inform employees of their right to refuse the vaccine on constitutional or medical grounds.
- Provide transport to and from the vaccination site.
- Refer the employee for further medical evaluation if they experience side effects from the vaccine.
- Accommodate employees who cannot receive the vaccine. For example, modify or adjust the job or work environment so that the employee does not have to be vaccinated and can remain employed.
The guideline impacts employees directly
Employees have certain rights and obligations under the guideline. For example:
- They must take the vaccine when it becomes available.
- An employee has the right to refuse the vaccine on constitutional or medical grounds.
- If they are unable to receive the vaccine on constitutional or medical grounds, an employee can consult a health and safety representative, workplace representative or trade union official for assistance.
- Employees experiencing side effects after receiving a vaccine may receive paid time off to recover.
Beyond the pandemic
Several organisations like banks, law firms, and other corporates have already taken measures to extend remote working indefinitely. However, in some industries like mining, health, and security remote working is not possible. Certain labour laws provide some protection against loss of employment.
The King IV paper called “Responsible Leadership in Responding to COVID-19” (2) also provides guidance to leaders on good governance practices to adopt to steer their organisations through the pandemic. The paper calls on leaders to align their workplace culture and values with the changing market values and priorities. It also recommends adequate oversight, setting policy and direction, and reassessing whether the management team has the skills, competency, and experience to deal with the crisis. The King paper places huge value on human capital. Leaders should acknowledge the importance of their employees to the organisation, whilst fully understanding the short- and long-term impact of COVID-19 on employees.
With a delay in the vaccine rollout programme, there is little guidance from a regulatory perspective to suggest what a working environment beyond COVID-19 will look like. As a first step, the efficacy of the different vaccines would have to be monitored over time. Further communication from Government following the completion of the vaccine programme would inform the way forward for the country and contribute to enabling business in a post coronavirus world.
