Can employers bar employees from office if they refuse to take Covid-19 vaccine?
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by Michael Bagraim
Many questions have arisen about the Covid-19 vaccine and employment. Lawyers across the country are investigating whether employers can force employees to take the vaccine, whether employers can expect certificates of proof and whether employees can be locked out of the premises because of non-compliance.
The argument came to a standstill when President Cyril Ramaphosa categorically stated on national television that no one would be forced to have the vaccination.
However, the argument about to whether you can refuse someone entry into premises remain. There might be an argument from other staff members that a certain individual refuses to be vaccinated and that they are at risk because of the refusal.
It is clear under the labour law that every employer owes a duty of care to all its employees.
The duty might extend to keeping people free from disease. We all understand that TB is a notifiable disease and an employer has a duty to ensure that the staff are not exposed to the spread of TB. The duty means that the person who has active TB and is contagious would not be allowed into circumstances where the employee comes into close contact with others.
The issue was hotly debated when South Africa was first exposed to HIV/ Aids. Later, it became clear that the virus was transmissible only in certain circumstances.
Even testing for HIV was questioned for a short period. There were some celebrated court cases whereby a commercial airline pilot would be forced to have a test. This was very much the exception.
My strong feeling is that employers will have to embark upon educating their staff about the value of the vaccination as used with physical distancing, masks and hand sanitising. Education in the circumstances will be the strongest factor in convincing all staff to vaccinate.
Many of my employer clients have voiced that they are willing to ensure that the staff are able to get the vaccination without losing part of their salary for the day off. Most are willing to even pay for the staff to have this privately done.
The quicker people get vaccinated, the better for the health system and the individual. It would also mean that we can get people working more productively without the downtime of illness and even hospitalisation.
Many business owners have indicated to me that they willing to pay for their staff to be vaccinated and ensure that their staff’s families are properly protected.
There will be individuals who, for various reasons, refuse to have this done. The individuals might be those who can continue to work at home or who could be kept away from large gatherings.
Most businesses are allowing their staff with comorbidities to work at home. Obviously, the individuals must be able to perform their function adequately from their home without coming into the work.
The regulations from the Department of Employment and Labour stand.
Every employer must report each new Covid-19 infection and must ensure that the individual goes into quarantine. This quarantine might affect an entire group of staff. It is clear that the effect on productivity is enormous.
The minority who refuse to be vaccinated might attract further regulations and even legislation. Unfortunately, the roll-out of the vaccination appears to be incredibly slow and there’s talk of a third wave. The third wave might even attract a new strain, possibly even rendering the vaccination to be less effective.
The sooner the government, provincial government and private company’s get the vaccine into South Africa the better.
I call on the minister of Employment and Labour to try to encourage employers to speak to their staff about the value of being vaccinated.
I read about one employer in the US who, as a bonus, was granting employees two extra days special leave to go and get the vaccination, while on full pay. It appears that this was incentive enough.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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