The issue of mandatory vaccinations in the workplace has been quite a contentious issue. Covid-19 cases continue to grow and companies are still trying to adopt and cope with the effects on the workplace environment.

In terms of the Occupational Health and Safety Act 85 of 1993, employers have a duty to provide employees with a safe working environment. Employers also have a duty to reasonably ensure that third parties, such as customers, are also not exposed to any hazards relating to their health or safety. In an effort to fulfil this duty, some noticeable companies, have made it public that they have instituted mandatory vaccination policies for their employees.

In response to the confusion relating to Covid-19 compliance in the workplace, Government issued out a COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces (“Directive”), which serves as a consolidated source document for the compliance requirements applicable to health and safety in the workplace.

The Directive requires that employers who wish to make vaccinations mandatory undertake a risk assessment to identify those employees who by virtue of their functions, age or comorbidities must be vaccinated. After conducting the risk assessment, an employer may decide to make vaccinations mandatory for all employees or only some employees, and should notify those employees that are identified in terms of the risk assessment of their rights and obligations.

Mandatory vaccination policies can limit the constitutional rights of employees. Where employees refuse to get vaccinated, employers are required to consider less restrictive ways to achieve a safe working environment, for example, by taking steps to reasonably accommodate the employee in a position within the company that does not require the employee to be vaccinated.

Despite the Directive not providing any guidance on the issue of whether employees can be dismissed if they refuse to take the vaccine, the CCMA recently addressed this in the matter of GK v Ndaka Security and Services (FSWK2448-21), by finding that the employee’s suspension after failing to comply with the employer’s mandatory vaccination policy, was not unfair and did not constitute an unfair labour practice.

The CCMA also indicated its support for employers who lay down policies and procedures in the interest of promoting a safe environment. This was recently made clear in TM v Goldrush Group (GAJB 24054-21) where the CCMA found that the employee’s dismissal pursuant to her refusal to be vaccinated was fair.

Although CCMA cases do not have the same binding effect as court cases, it is interesting to note their stance on this subject until more binding decisions are made on the application of vaccination policies in the workplace through the courts.  

Read our article on vaccinations in the workplace.