UNVACCINATED employees are in for a tough battle as new regulations and a string of failed court challenges empower employers to enforce mandatory policies.
“I quit my job in January when my employer wanted to force me to get vaccinated and I told him that I could not because of my religious beliefs. And then I had to show up with a negative test every week when no one else (who was vaccinated) had to and I could not afford it,” said a woman who wished remain anonymous.
Recently, the government introduced the Code of Good Practice: Managing Exposure to Sars-Cov-2 in the Workplace, which is meant to come into practice once the National State of Disaster comes to an end on or after April 15.
Labour experts from Werksmans Attorneys, Bradley Workman-Davies and Kerry Fredericks said the Code places an emphasis on workers being obliged to comply with an employer’s workplace plan, which may include mandatory vaccination.
“There appears to be a stricter requirement on employees to take reasonable steps to adhere to mandatory vaccination plans, and an acceptance that such plans are reasonable measures which may be adopted under the Occupational Health Safety Act (OHSA) and Hazardous Biological Agents (HBA) Regulations to ensure that employers do not breach their obligations to ensure that workplaces are free of health and safety risks,” said the companies in the statement.
The National Employers’ Association of South Africa (Neasa) said it would approach the courts to challenge its legality once it comes into effect.
Neasa’s CEO Gerhard Papenfus said: “We are perturbed by the contents of the newly introduced Code and the accompanying regulations in respect of Hazardous Biological Agents in the workplace.”
The organisation said the new regulation places a massive, unreasonable administrative and legal obligation on the employers.
“The OHSA and the HBA regulations were designed to mitigate the risk of exposure to an HBA which originated in the workplace, and to prevent the possible transmission thereof to the community. Covid-19 does not originate in the workplace but is already circulating freely in all communities.”
Activist and lawyer Schalk van der Merwe said the new regulations could potentially open the floodgates for employers to implement mandates.
“I can only foresee that human rights will only suffer even more. When you are dealing with someone’s health it is not for the state or the employer to impose something on you that can in some way affect your body,” he said.
“We must relook how we look at and how we deal with this issue. We are sitting with a disease that is not going away.
“There have been very troublesome findings by commissioners at the CCMA (Commission for Conciliation, Mediation and Arbitration), we are sitting with cases at the CCMA and that will have to guide us and the regulations promulgated a week ago. We will have to have a court at some point making a definitive finding on this issue.
“We are going to see a dam wall breaking at some point because most employees still believe they will be assisted at the CCMA.”
In a recent judgement, Judge M Makhura in Gauteng upheld an employer’s right to require employees to either provide proof of vaccination to access the work’s premises or provide a weekly negative Covid-19 test.
Van der Merwe said the practice of requiring a negative PCR test was itself a coercive method to get employees to vaccinate.
“That is actually forcing people without forcing them. The employer can’t force anybody to undergo medical testing against their will, the Employment Equity Act creates a safety net but then the regulations from last year, item 15, said there can be no deductions from the employee nor can they pay for anything relating to the implementation of the policy,” he said.
“But still the employers do this, they say to the employee, you can come to work but every 72 hours you must provide a PCR test to show that you are Covid-negative. The cost of the PCR may be prohibitive for the average employee earning R5 000 or R6 000 a month, they cannot do that, then many of them resign or give in and get the jab.”
While companies and institutions were forging ahead with vaccine mandates, others have put their proposed policies on ice.
Mediclinic Southern Africa, whose policy was meant to kick in on April 1 halted its implementation.
“Considering the behaviour of the Omicron variant and the reduced risk in our workplace, Mediclinic has decided to ease the implementation of some aspects of our Mandatory Vaccination Policy at this stage,” said the company.
The University of Cape Town also stopped short of implementing a mandate that would have required staff and students to get vaccinated in order to gain entry to campuses.
“Council resolved that all members of the UCT community should declare, on a voluntary basis, their vaccination status and will receive support, information and counselling to promote voluntary vaccination,” said the institution.
In a recent response to a parliamentary question around vaccine mandates in tertiary institutions, Minister of Higher Education, Blade Nzimande, said “Higher Health has finalised the guidelines that institutions will follow around vaccination. I am currently studying the guidelines before I can release them for implementation by all our institutions,” he said.