Employer’s responsibility around the COVID-19 Vaccine

South Africa’s Covid-19 vaccine roll-out has started. Since the country currently has no law making the vaccine mandatory, employers may be wondering what their role in the health and safety of their employees is.

Without a law which mandates the inoculation of the entire population against the virus, and given the serious risks posed by the new strain, introducing the vaccine raises these questions in the workplace:

Should employers consider implementing a mandatory vaccination policy?
How does an employer deal with employees or applicants for employment who refuse to be vaccinated?
Are beliefs regarding vaccinations, such as veganism, health-related concerns and religion, legitimate grounds for an employee to refuse to be vaccinated?

The roll-out of vaccinations will hopefully be the start to workplaces getting back to some form of normality. The introduction of the vaccine will offer employers the opportunity, in time, to phase in the return of employees to the workplace. However, the roll-out of a vaccine nationwide will present challenges and raise a number of concerns that employers will need to address with care.

The efficacy and safety of the vaccine is a real concern for some and there are many articles which are creating confusion and doubt. According to an online survey conducted by the World Economic Forum in August, one out of three South Africans do not want to get a Covid-19 vaccine. As an employer, you need to ensure that there is ongoing communication around the vaccine and how you can support the government roll-out.

What steps can employers take now?

While we await further information on the vaccination programme, there are a number of steps employers can take to help prepare for the roll-out, including:

Auditing your workforce to identify who can still continue working from home and who needs to be in the workplace.
Identifying roles which may reasonably justify an employee having to have a vaccination in order to perform those roles. Employers also need to consider how they will manage an employee whose role requires them to be vaccinated but who refuses to do so, remembering that cases will need to be reviewed on an individual basis and vaccination is not mandatory.
Put in place an internal communication strategy, providing clear information to employees on the vaccination programme and encouraging participation. Education and information is going to be key to ensure the majority of the workforce is vaccinated. There are many myths around the vaccine which have created fear.

We do not yet know how long it will take to complete the vaccination programme, and what effect this will have on the South African virus rates. With this in mind, at the moment your Covid-19-secure working arrangements should remain in place and you should continue to adhere to government guidance. Employers should plan for the pandemic to be an ongoing issue despite the vaccine. In addition, even employees who have been vaccinated may still not be comfortable with returning to their workplace. Employers should consider how to manage any ‘reluctant returners’, as well as how to manage a potentially mixed workforce of those who have been vaccinated and those who have not yet received theirs.

Once the roll-out is taking place, employers will also need to consider the impact on productivity and how they want to assist their employees as best as possible. This could include time off to go for the vaccination, or allowing an on-site strategy if allowed. Remember that employers cannot procure vaccinations for staff and will have to abide by the government roll-out plan.

The vaccination programme and its impact will evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.

How does the vaccine impact an employer’s duties around health and safety?

Employers have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all their employees. This means employers will need to consider how the availability of a vaccine impacts on this duty over the coming months.

Employers must undertake risk assessments of the Covid-19 transmission risk for their organisation. These will need to be revisited to assess whether any measures may be relaxed or stopped once part of the workforce is vaccinated. That may be particularly important for organisations in which key activities have not been possible or have been substantially curtailed or impacted by having to undertake them in a ‘Covid-19 secure’ way.

It is too early to say how the risk-mitigating impact of having a partially-vaccinated workforce might be reflected in an organisation’s Covid-19 risk assessment and its combination of risk controls to reduce transmission. In particular, it is currently unclear if vaccinations will prevent the vaccinated person from transmitting the virus to those who are not vaccinated, meaning that preventative measures are therefore highly likely to be required for some time. However, some advanced thought might be given to whether, for example, vaccinated employees could be grouped to undertake some essential tasks which have not been possible or where few of the existing risk mitigations are available.

Can employers make the vaccination compulsory?

Requiring an entire workforce to be vaccinated will be difficult to achieve from both a legal and labour relations perspective. As the vaccine is not mandatory by law, it will be up to individuals to decide whether or not to be vaccinated. The National Health Act, 2003, gives effect to this right and makes it clear that a health service (which includes medical treatment) may not be provided to a user without the user’s consent.

An employer would have to think very carefully about implementing a compulsory vaccination policy and certainly the industry of that employer would be a critical starting point to determine the reasonability of such a policy. Arguably a hospital may consider such a policy for its staff, whereas a corporate client would not.

The question of what is reasonable is likely to depend on the risk and implications of Covid-19 in the particular setting – the higher the risk a non-vaccinated person in the workplace presents to themselves and others, the more reasonable the requirement to have the vaccination becomes. What is ‘reasonable’ will also change over time, if, as expected, people’s initial concerns about the vaccine dissipate and having the vaccine becomes more common. For the moment, the reasonableness of a requirement to be vaccinated is likely to be difficult to establish, in most circumstances, in light of it being a new vaccine.

Employers will need to remember that not all employees will be willing to have the vaccination due to various reasons like religious beliefs, disability or health-related reasons. It, therefore, cannot be made compulsory and disciplinary action cannot be instituted.

ENDS