Vaccination policies in South Africa remain controversial however they are not illegal if the policy is implemented in a manner which conformed with the laws in South Africa.
Many companies followed the Department of Employment and Labour *Amended Consolidated Direction on Health and Safety *which provided the circumstances under which an employee may implement a mandatory vaccination COVID 19 policy in their workplaces.
However, now that South Africa is no longer in a National State of Disaster, is your vaccination policy still legal? We seek to provide you with the answer in this article and to assist you in drafting a legally enforceable vaccination policy.
To be clear, the law in South Africa still allows for vaccination requirements / policies in the workplace even outside of the National State if Disaster.
What does the law say?
Even before COVID, the Occupational Health and Safety Act, 1993 (OHSA), provided for guidelines on vaccination policies in South Africa.
Under OHSA, an employer in a company has a legal duty to ensure a working environment that is safe and without risk to the health of its employees.
Under OHSA various regulations are published which help employers understand and practically implement the provisions of OHSA.
For example, the Hazardous Biological Agents Regulations (Hazardous Regulations) were recently amended to state that the SARS-CoV-2 virus is classified as a Group 3 hazardous biological agent. The Hazardous Regulations further confirm that a registered vaccine for the SARS-CoV-2 virus (COVID) is available in South Africa.
The law in South Africa states that employers are to conduct a risk assessment to determine if any employee could be exposed to a hazardous biological agent. If after conducting the risk assessment it is found that employees may be exposed to COVID or another hazardous biological agent at the workplace the employer must take steps to control such exposure in the workplace.
The Hazardous Regulations go on to provide that, such control measures must include making available effective vaccines for employees who are not immune to the hazardous biological agent in question.
How does an employer being to implement such control measures?
The Code of Practice
The Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace” (Code) is now in force. The Code states that every employer must undertake a risk assessment and based on the risk assessment must develop a plan to include steps to be taken relating to the vaccination of its employees.
A vaccination policy is only necessary and therefore legally enforceable as a “reasonably practicable control measure” which the employer will determine based on its risk assessment.
What is a Risk Assessment?
What is a risk assessment and how do you go about doing one?
Before developing a policy on vaccination, an employer needs to conduct a risk assessment. You can find our suggested risk assessment document here [=].
Legally an employer must inform all employees of the results of the risk assessment, and the employees must be given an opportunity to comment.
If there is an employees’ union representing the majority of employees the employer must also consult with the union regarding the outcome of the risk assessment. To the extent that there is a health and safety representative/committee, the employer must also consult with the committee.
What does a Vaccination Policy look like?
Once the risk assessment has been completed and the employer has determined that there is a need for a policy to ensure a safe working environment, the employer must draft a policy describing the steps to be implemented for vaccinations in the workplace.
But what does this policy look like? You can find our suggested vaccination policy document here [=].
The Code states that an employer must provide employees with information about:
the nature of vaccines used in the country;
the benefits of the COVID-19 vaccines;
the nature and risk of any serious side effects;
we would suggest providing employees with the following fact sheet – [=].
Objections to vaccination:
Employers are advised to note that an employee can object to a vaccination on medical and constitutional grounds.
The Vaccination Policy must make provision for an objections process. Our Vaccination Policy sets out clear guidelines to be followed when an employee refuses a vaccination.