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COVID-19: AMENDED CONSOLIDATED DIRECTION ON OCCUPATIONAL HEALTH AND SAFETY MEASURES SHEDS SOME LIGHT ON EMPLOYEE VACCINATIONS IN SOUTH AFRICA

By Chloë Loubser Tuesday, June 15, 2021
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The Minister of Employment and Labour has issued an amended COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces (Amended OHS Direction), which was gazetted on 11 June 2021 and is now in force. The Amended OHS Direction replaces the Direction that was published on 1 October 2020. 

While most of the required health and safety protocols in workplaces remain unchanged, the Amended OHS Direction now deals with the much anticipated and somewhat controversial issue of workplace vaccinations. 

We highlight the most notable changes and additions below. 

Risk assessments and plans for protective measures

In addition to the (now standard) risk assessment and Workplace Plan outlining the protective measures in place at the workplace, the Amended OHS Direction now requires an additional risk assessment to be conducted by all employers to determine (i) whether it intends to make vaccination mandatory and if, so (ii) those employees who by virtue of the risk of transmission through their work or their risk for severe COVID-19 disease or death due to their age or comorbidities, must be vaccinated. The assessment must be conducted taking into account the operational requirements of the workplace.

This risk assessment must be performed by all employers within 21 days of the coming into operation of the Amended OHS Direction, i.e. by 2 July 2021.

On the basis of this additional risk assessment, an employer must also develop a plan or amend its existing Workplace Plan to outline (in addition to the general protective measures) the measures that the employer intends to implement in respect of the vaccination of its employees. The plan must include:

  • those employees identified for compulsory vaccination;
  • the process by which the obligations in terms of the Amended OHS Direction will be complied with; and
  • whether the employer plans to make it mandatory for the identified employees to be vaccinated, as and when COVID-19 vaccines become available to those employees.

In developing and implementing this plan, the employer must:

  • comply with any applicable collective agreement;
  • consider the Guidelines in Annexure C of the Amended OHS Direction; and
  • take into account the Constitutional rights of its employees to bodily integrity and to freedom of religion, belief and opinion.

Guidelines if an employer makes vaccination mandatory   

Annexure C of the Amended OHS Direction contains guidelines that are intended to guide relevant parties (including employers and courts) in determining the fairness of a mandatory vaccination policy and its implementation. The guidelines do not prescribe binding rules and deviations may be justified in appropriate circumstances. 

The Guidelines emphasize the primacy of collective agreements (which must be honored), as well as the importance of three key issues, namely public health imperatives, the constitutional rights of employees, and the efficient operation of the employer’s business.  

In terms of the Guidelines, where an employer’s plan requires identified employees to be vaccinated, that plan should provide the following: 

  • For every employee identified for vaccination to be notified of (i) the obligation to be vaccinated as and when a vaccine becomes available for that employee; (ii) the right to refuse to be vaccinated on constitutional or medical grounds; and (iii) the opportunity to consult a health and safety representative or a worker or trade union official, upon request; 
  • If reasonably practicable, for transport to be made available to and from the allocated vaccination site; and
  • For paid time off to be granted to employees who suffer side effects as a result of the vaccination where their sick leave entitlement in terms of the Basic Conditions of Employment Act, 1997 (or a collective agreement) has been exhausted, or for a claim for compensation to be lodged in terms of the Compensation for Occupational Injuries and Diseases Act, 1993. 

Employees who refuse to be vaccinated on any constitutional or medical ground should be counselled, referred for further medical evaluation should there be a medical contraindication for vaccination and, if necessary, steps should be taken to reasonably accommodate the employee (e.g. by allowing the employee to work off-site or at home, providing the employee with her/his own isolated office, requiring her/him to wear an N95 mask, modifying her/his working hours, or moving the employee into a position that does not require the employee to be vaccinated).

Administrative measures – employers with more than 50 employees

The previous amendments to the OHS Direction in October 2020 introduced additional reporting obligations on employers who employ more than 50 employees. Specifically, such employers were required to submit a record of their risk assessment, together with a written COVID-19 policy to both their health and safety committee and to the Department of Employment and Labour (DEL). 

The Amended OHS Direction has now removed the requirement to make submissions directly to the DEL, and such employers are now only required to submit the required records to its health and safety committee and retain copies, which they will be required to make available to health and safety representatives and inspectors from the DEL. Notably, however, those records now also include a copy of the employer’s Workplace Plan.

Accordingly, employers with more than 50 employees must submit a record of their risk assessments, Workplace Plan and policy (including amendments made to deal with the issue of vaccinations) to their health and safety committees and retain copies of such records for inspection by the authorities. 

Raising awareness

Employers have already been required to provide workers with information (including, where reasonably practicable, leaflets and notices) that raises awareness of, inter alia, the dangers of COVID-19, measures to prevent transmission and where to go for screening or testing. This information must now also include the nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contraindications for vaccination and the nature and risk of any serious side effects such as severe allergic reactions. 

Administrative support and paid time off for vaccination

All employers are now required to give administrative support to assist employees to register on the Electronic Vaccine Data System Registration Portal for COVID-19 (available here). 

Employers are also required to give their employees paid time off to be vaccinated, provided that the employee provides proof of the vaccination that has occurred or is to occur during hours that the employee ordinarily works. 

Symptoms arising from vaccination

Since permitting workers back into the workplace, employers have been required to take measures to screen employees for typical COVID-19 virus symptoms and not permit any employees displaying such symptoms to come to work. The Amended OHS Direction now appreciates that these symptoms may arise after an employee has been vaccinated. Workers who present with symptoms between one to three days after having a COVID-19 vaccination may be permitted into the workplace, and the requirement to refuse entry to them will accordingly not apply.

Should an employee suffer side effects as a result of a COVID-19 vaccination and is unable to attend work following vaccination, the employer must place that employee on paid sick leave. In such case, an employer may accept a COVID-19 vaccination certificate issued by an official vaccination site in lieu of a medical certificate. 

Exclusions

Employers with 10 employees or less must bear in mind that more limited obligations still apply to them (as per Direction 12) and many of the additional measures explained above will not be applicable.  

In addition, the Amended OHS Direction does not apply at all to workplaces that are excluded from the application of the Occupational Health and Safety Act, 1993 (such as mines and ships) or in respect of which another Minister has issued a direction under the Disaster Management Act Regulations, dealing with health and safety of employees. 

The key question and take-aways

With the above amendments in mind, the key question that employers are probably asking is whether they can now go ahead and implement a mandatory vaccination policy at the workplace. The Guidelines and the provisions in the Amended OHS Direction have certainly now confirmed that there may be circumstances in which a mandatory vaccination policy may be fair and justified.

However, employers are still advised to tread carefully when putting in place their vaccination plans, as what is also clear is that there are a number of competing rights and interests that need to be balanced. Ultimately, the lawfulness of a mandatory vaccination policy will depend on, inter alia, the nature of the employer’s workplace and the type of work performed and the intended consequences for employees who refuse to be vaccinated. 

By way of example, if the workplace is a food manufacturing plant with many employees working in close proximity, it may well be reasonable to require the employees to be vaccinated, and to deal with objections on the basis of religious beliefs or underlying medical conditions on a case-by-case basis. In the case of office workers, where the employees have their separate offices and very limited interaction with the public, the risks of transmission may be much reduced and a mandatory vaccination policy may not be necessary, particularly if the now normal requirements of adequate space, mask wearing and regular hand-sanitizing are complied with.