Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds. This is contained in the new consolidated direction on occupational health and safety measures in certain workplaces which was gazetted by the Minister of Employment and Labour, Thulas Nxesi.
"The key principle of these guidelines is that employers and employees should treat each other with mutual respect. A premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business," reads the guidelines.
Constitutional grounds could be the right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the Constitution. Medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccine.
The Consolidated OHS Direction now requires an employer to include in its risk assessment whether it intends to make vaccinations compulsory. This is a three-step enquiry:
"What is critical is that we need to balance the needs and to take the dictates of collective bargaining and the need to keep employees healthy and businesses running. The Labour Relations Act emphasises the primacy of collective agreements. These guidelines are not intended as a substitute for collective agreements or agreed procedures between employers, their employer organisations and trade unions," said Minister Nxesi.
This might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N95 mask.
Sabelo Mali: MLO to the Minister
082 729 5804
Musa Zondi: Acting Departmental Spokesperson
067 426 4190
"Please continue adhering to the lockdown regulations. Wash hands or sanitise your hands regularly and wear your mask at all times."
Issued by: Department of Employment and Labour
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