How employees have a right to refuse the vaccine in South Africa?

Labour minister Thulas Nxesi has published a new directive focusing on Covid-19 and the workplace, outlining the health and safety protocols that businesses and employees are required to follow during the lockdown.

While a number of the regulations have been gazetted before, this directive serves to consolidate and update the existing regulations as it deals with new issues. For the first time, the regulations also deal with the issue of vaccinations and whether an employer can make them mandatory.

It gives an employer 21 days to make a decision on whether it intends to make vaccination mandatory, taking into account the operational requirements of the workplace.

If a workplace does decide to make vaccinations mandatory, it is also required to identify employees who by virtue of the risk of transmission through work, age or co-morbidities, must be vaccinated.

Employers will also be required to develop a plan outlining the protective measures in place for the phased return of workers, and the measures it plans to implement to ensure that workers are vaccinated.

Other issues which should be included in the plan are:

  • The date the workplace will open and the hours it will be opening;
  • A list of employees permitted to work and those who are required to work from home;
  • The plan and timetable for the phased return of employees;
  • The employees who have been identified as vulnerable;
  • Ways of minimising workers in the workplace;
  • The measures for the daily screening of employees, clients, contractors and visitors;
  • Procedures for employees who refuse to work due to fear of exposure to Covid-19.

Should the employer decide to make vaccinations mandatory, this should also be explicitly included in the plan, as and when Covid-19 vaccines become available for those employees.

The directive states that employees still have a right to refuse the vaccine on constitutional or medical grounds, and should be allowed to consult with health, safety or labour official.

The employer should also provide transport to the vaccination site for the worker, and is required to give the worker time off should they have side effects following the vaccination.

Should an employee refuse to be vaccinated on constitutional or medical grounds, the employer should:

  • Counsel the employee, and if requested, allow the employee to seek guidance from a health, worker or trade representative;
  • Refer for medical evaluation should there be a be medical contraindication for vaccination;
  • If necessary, takes steps to reasonably accommodate an employee in a position that does not require them to be vaccinated.

The directive states that this ‘accommodation’ means any reasonable change that would allow an employee to keep their job, such as working offsite or from home, or in isolation at the workplace.

This may also include the requirement that the employee wears an N95 mask.

Akoma Fabrice

I love God and his Christ. So I am not ashamed of the gospel of Christ that I preach.

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