The highly controversial topic of mandatory vaccination policies in the workplace is riper than ever with government announcing that the National State of Disaster is to be lifted on 15 April 2022.

The question top of mind is what happens to the workplace restrictions put in place now that the state of disaster is to be lifted.

Employment and Labour Minister Thembelani Nxesi published new rules for managing Covid-19 in the workplace, namely, The Code of Practice: Managing Exposure to Sars-CoV-2 in the workplace (“the code”) that will come into effect when the national state of disaster is to be lifted, at present envisaged for 15 April 2022.

The Code now creates enforceable obligations under various pieces of legislation i.e. the Labour Relations Act, Basic Conditions of Employment Act, Occupational Health and Safety Act (“the OHSA”) and the Regulations for Hazardous Biological Agents (“the HBA”).

In short, the previous Consolidated Direction on Occupational Health and Safety (“Direction”) paved the way for mandatory vaccination policies in the workplace. The Direction required employees to develop risk assessment plans to assess whether it is necessary to implement a mandatory vaccination policy in the workplace, based on the operational requirements of the employer, keeping in mind employees rights to refuse the Covid-19 vaccination on constitutional grounds in relation to bodily integrity and the right to freedom of religion, belief and opinion.

The Code mirrors the Direction issued in 2021, with a few significant additions, in particular with regard to Covid-19 vaccinations.

The key/ fundamental changes from the Direction are:

• The Code now expressly permits an employer to require its employees to disclose their vaccination status and to produce vaccination certificates. This will be welcomed by employers who have, to date, been at odds with the question of whether the processing of vaccination status is permissible in terms of the Protection of Personal Information Act, 2013.

• Where an employee produces a medical certificate affirming that the employee has contra-indications to vaccination (as a basis for the employee’s refusal to vaccinate), the employer is permitted to refer the employee for a medical evaluation to confirm this, at the employer’s cost.

• The focus on refusal to be vaccinated appears to be on medical grounds only, and no direct mention is made to constitutional or belief/religious based grounds. It refers generally to the concept of reasonable accommodation if an employee ‘refuses to be vaccinated’ (i.e. for any reason). In this regard, however, it appears that there will be a greater obligation on employers to reasonably accommodate an employee where the basis for refusal is a medical contra-indication, by the use of the legislative peremptory language/word ‘must’ accommodate. This a significant move towards a state more manageable in terms of incapacity and occupational health and safety requirements and principles.

• Finally, Coronavirus has been listed as a Hazardous Biological Agent under the Regulations for Hazardous Biological Agents which places a legal responsibility on employers to limit exposure and mitigate the risk of infection in the workplace, meaning that there are now direct and positive OHS obligations on employers.

The Code appears to place a greater impetus on employers to roll out vaccinations in the workplace, than that of the Direction. The Code strengthens the rights of employers to request the vaccination status of employees and limits the grounds employees may refuse to get vaccinated on.

What can be inferred is that the Code would be less accommodating to an employee refusing to get vaccinated on a religious or belief based ground than an employee whose refusal is based on a medical ground.

Evident from the code, mandatory vaccination policies in the workplace are here to stay. Whilst Covid-19 restrictions are lessening, there appears to be a stricter requirement on employees to adhere to mandatory vaccination plans, failing which this may have detrimental effects on their employment.

We trust that you found this article informative, please email info@hjw.co.za for assistance with vaccination policies or any other workplace vaccination queries.

Alexi Rosenzweig is a candidate attorney at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.