As the global economy continues its attempts at recovery whilst moving into the third year of the pandemic, our clients have reached out for advice in the drafting of policies and communications to the workforce on mandatory COVID 19 testing and vaccinations.
Whilst there are many arguments for and against mandatory vaccination, both rational and justifiable, the global medical and scientific communities are unequivocal in their advice: get vaccinated. At the start of December, BusinessTech reported that the government is taking mandatory vaccination policies seriously by putting together a task team to implement mandatory vaccination in certain industries in early 2022. Additionally, they have reported that Discovery Health has already implemented these policies and seen a surge in staff vaccinations.
For industries who hope that their requirements may urge staff towards getting vaccinated, we have put together some guidance for implementation and how staff who assert their rights against being vaccinated, may be treated by their employers.
What does the law say? May individuals truly be compelled by their employers to be vaccinated against Covid 19?
The reasons why some individuals may protest vaccination against Covid 19 (or vaccination in general) is varied. Whilst the South African Constitution is globally respected as one of the most comprehensive, it is understandable that some may be strongly opposed to vaccination on Constitutional grounds such as freedom of religion, belief, and opinion. These rights enshrined in the Constitution are certainly hotly contested in the current climate, as the balancing of rights and freedoms and their importance is both a subjective and objective assessment based on reasonability.
Equally, however, Section 24 of the Constitution guarantees the right to an environment that is not harmful to the health and/or wellbeing of citizens. These rights are turned into obligations for an employer with specific reference to section 8(1), 9(1), 12(1)(b), and 14(a) and (c) of the Occupational Health and Safety Act No.85 of 1993 (as amended) (the “Act”).
This certainly leaves employers in a predicament where they are expected to treat all internal stakeholders equally, fairly, and justly. The best way to go about the matter, until a declaratory order is given by the Constitutional Court at least, is to follow the directives given by the government closely.
How can a business determine whether implementation of a mandatory vaccination policy, taking all the relevant and respective rights into consideration, will be appropriate?
Prior to implementing a mandatory vaccination policy, and considering its inherently restrictive nature, a consultation must be held internally by the business between all stakeholders. The business must make its intentions clear, including the extent of the intended policy, timelines, exemption, and the consequences of non-compliance. Internal stakeholders must be given the opportunity to respond to the proposed implementation, highlighting any concerns they may have, and be given the opportunity to propose alternatives or less restrictive measures.
As with any organization focused on cultivating a positive and conducive culture, due regard must be given to any concerns raised, and the business must reassess whether these concerns warrant an amendment to the envisioned measures.
The business must undertake a thorough risk assessment of all of the relevant factors pertaining to implementation. A risk rating of the likelihood of transmission must be assigned to the operations of the business in the context of its day-to-day operations. If mitigating measures can be adopted, the business must consider its practicality and impact on the business. Full reasoning for the risk rating must be documented in the policy. Where necessary, the business must adopt the relevant additional policies as required, for instance, a Remote Working Policy and/or a Personal Protective Equipment Policy.
In drafting its COVID 19 testing and vaccination Policy, clear and consistent rules must be set out regarding generally applicable requirements. If the decision is that all internal staff must be vaccinated, the business must set out the requirements for testing during working hours, paid time off in the event of side effects experienced, and how substantiating documents must be provided. It would be wise to keep in mind that the information collected may be considered special personal information and must be processed and stored in a lawful manner.
Additionally, the business must clearly set out its policy, protocols, and grounds upon which requests can be made by employees for exemptions. The process must be clearly defined for consideration. Where internal stakeholders will be impacted if the exemption is granted, clear and consistent consequences must be detailed to enable informed decisions.
It deserves to be mentioned that anyone requesting an exemption from such policy, for whatever reason, must continue enjoying all working conditions and privileges in terms thereof. Any information disclosed by a person must be treated in accordance with the relevant privacy rules and confidentiality obligations, and no person who is seeking exemption may be discriminated against when pursuing furtherance in their career.
As made clear above, there are certainly many considerations an employer must take into account before deciding on the implementation of anything mandatory in the workplace, especially when mandatory measures are as invasive as this one.
Employers should remember the adage of no-good deed goes unpunished! When deciding on either implementation or non-implementation of a mandatory vaccination policy, either decision may be met with resistance by one camp and welcomed in the other. No matter how clearly the intent may be set out, there will be internal stakeholders who need to be catered for on either side of the spectrum. What will remain paramount is the treatment of those stakeholders, and ensuring that it is fair, consistent and lawful. When drafting rules and policies, employers would be wise to include provisions for any eventuality and to retain the right to amend those policies on an ad hoc basis.
Whilst there is much uncertainty as from the start of the pandemic, one thing is certain: without a clear and actionable plan in place, the narrative of uncertainty will continue prevailing.
If you need any assistance in crafting tailored policies for your business, we invite you to contact us.
We have many tools in our arsenal! Contact O’Reilly Law’s specialist Regulatory Compliance Team for your own Vaccination Policy at firstname.lastname@example.org.
Written by Chane Williams. Chane is an associate at O’Reilly Law and forms part of the regulatory and compliance team.
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