There is nothing in the South African Constitution – or any other law in South Africa – which prevents an employer from implementing a compulsory vaccination policy at organisations. The Direction on Occupational Health and Safety is the guideline law that requires you to consider the Constitutional rights of employees in implementing policies – such as a vaccination policy – specifically when it comes to the future employment prospects of employees.

The route regarding the implementation of a compulsory vaccination policy is clearly laid out in the Direction and this requires a proper analysis as to why the organisation would require this type of policy at the workplace. If your employees are in close contact in your workplace, and this close proximity is a requirement for them to do their jobs, then there needs to be a consultation process which the recognised trade union (if the organisation has one) and the Occupational Health and Safety committee need to be a part of.

After this process, an employee’s refusal to be vaccinated could result in their dismissal.

During the compulsory vaccination implementation process, employers will need to take into account religious, medical safety, cultural and other similar objections of the employee who refuses to get the vaccination.

Of course, whether your policy is fair and reasonable could eventually be adjudicated by a dispute resolution body like the CCMA, Labour Court, Labour Appeal Court and eventually the Constitutional Court.

It is my opinion that after such a procedure – and having a good rational (inherent requirement for doing a compulsory vaccination at a workplace) – that eventually the likely dismissal would be one based on operational requirements.

The interesting case would be that you could then, as an alternative to dismissal after refusal of a vaccination, follow the retrenchment process in sections 189 or 189A pf the Labour Relations Act. The organisation could offer no retrenchment package as a reasonable alternative to a job which had been offered – that reasonable alternative being a vaccination with all the necessary protocols in place.

Always Have Clear-Cut Policy

The above process includes a fair, reasonable and justifiable vaccination policy, a process to engage with employees to understand the underlying rationale of the refusal and to determine the underlying employees’ concerns as well as how they could be addressed.

In determining the risks for having unvaccinated employees at the workplace, an employer could consider various factors including – but not limited to – the types of vaccinations employees have taken and the efficacy of specific vaccines against the transmission of COVID-19 . With the rise in the Delta variant, we can see that this is highly transmittable. This is therefore further support of the inherent requirements of compulsory vaccination and a justifiable rationale for workplaces.

We know that the Department of Health was very keen on a compulsory vaccination policy hence the inclusion thereof in the Direction.

If you would like to contact me to discuss the implications of a COVID-19 vaccination policy in your workplace, please email me on [email protected]

Kind regards,

Johnny Goldberg