COMPANY POLICY ON VACCINES FOR COVID19

1. POLICY ON PAID TIME OFF AND SICK LEAVE FOR VACINATION

Two new categories of ‘paid time off’ or ‘sick leave’ came into being as of 11 June 2021. Both of these relate to Covid-19 vaccination.

An updated ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ was gazetted on 11 June 2021 (‘the Direction’). It contains a raft of new requirements for risk assessment, plans and measures surrounding mandatory vaccination, which are not discussed here.

The Direction also requires employers to give employees paid time off –

(a) to be vaccinated against Covid-19; and

(b) to recover from the side effects of being vaccinated.

Paid time off to be vaccinated

An employer must give its employees paid time off to be vaccinated. The employee may be required to provide proof of an appointment to be vaccinated.

In our view this obligation is relatively uncontroversial. Time off should not be regarded as sick leave, though, as the employee who goes for vaccination is not too ill to work. It should be regarded as a form of ‘special leave’. From a practical point of view the employee will be given time off, but be paid as if he/she has worked a full day.

Paid time off due to side effects

If an employee suffers side effects as a result of the vaccination, the Direction states that ‘the employer must in accordance with section 22 of the BCEA place its employee on sick leave.’

The guidelines of the Direction (which only apply if vaccination is mandatory) add that:

• once the sick leave has been exhausted, employees should be given further paid time off if they’re still ill; or
• a claim may be lodged for compensation in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA).

Regarding ‘sick leave’ the guidelines (which, again, only apply where vaccination is mandatory) state that an employer ‘may accept a Covid-19 vaccination certificate issued by an official vaccination site in lieu of a medical certificate’.

The Direction of the guidelines are somewhat confusing and give rise to several questions, including:

• Do different sick leave requirements apply if the employer makes vaccination mandatory vs when it is voluntary?
• What is meant by ‘further paid time off’ once sick leave has been exhausted? (Is this a type of special leave that can continue indefinitely?)
• How can a vaccination certificate possibly be proof of the existence of a good reason for absence due to the side effects of vaccination? (We would argue that a vaccination certificate can merely be proof that the employee was absent in order to be vaccinated.)
• On what basis can an illness due to the side effects of vaccination be considered an occupational disease in terms of COIDA?

Until such time as the Direction is amended to provide more clarity, employers should adopt the following approach:

1. Employees must be paid for their absence to be vaccinated. It should be regarded as ‘special leave’, not sick leave.
2. A vaccination certificate issued by an official vaccination site should be accepted as a good reason for absence in order to be vaccinated.
3. In cases of absence due to side effects in the case of voluntary vaccination, employees should be entitled to paid sick leave.
4. The same proof of incapacity may be required as in all other cases of absence due to illness.
5. In a situation where the employer has made vaccination mandatoryand an employee is absent due to side effects, it may be regarded as an occupational disease in which case –

(a) the first two days of absence should be regarded as paid sick leave as per the BCEA;

(b) if the employee is absent for more than two days, a claim for compensation may be lodged in terms of the COIDA.

The approach suggested in paragraphs 5(a) and (b) is based on the fact that, in terms of COIDA, there is no right to compensation for a temporary disablement that lasts for two days or less.

1. MANDATORY VACCINATION

Taking into account the operational requirements of the company and medical, religious, bodily integrity and any other factors reasonably raised by the employees, management must consult with staff to implement a policy regarding mandatory vaccination for Covid-19.

Medical testing in the workplace, is regulated in terms of section 7 of the Employment Equity Act (“EEA”), management also relies on its obligations as contained in the Occupational Health and Safety Act (‘OHSA“) The Act places a duty on employers to amongst others, provide and maintain, as far as is reasonably possible, a working environment that is safe and without risk to the health of its employees.  

Section 12(b) of the Constitution states that everyone has the right to bodily and physiological integrity, which includes the right to security in and control over one’s body. This section provides that a person has a right to make decisions about their own body in an autonomous and independent manner without any undue external interference and prevents any unwanted disturbances of bodily integrity, as would arise if an employee/job applicant is compelled to be immunised.

There is no employment and labour legislation regulating medical treatment in the workplace, which includes immunization. Employees are however encouraged to be immunized. No employee will be legally required to take the vaccine. The Company wish to ensure that the risk of contracting and spreading Covid19 in the workplace is minimised and possibly illuminated by implementing a mandatory immunization policy for its employees and job applicants. The vaccination compulsion will be subject to certain oversight and will be reasonable in all circumstances.

The Company acknowledges the following:

• The Constitution protects a person’s right to religion and belief, including the right to practice one’s religion. Certain religions may prohibit immunisation. Furthermore, certain vaccines may contain ingredients that are prohibited in certain religions.
• Vaccinated employees may raise that their constitutional right to life is being compromised by working with employees who object / refuse to being vaccinated (especially since contracting COVID-19 can cause death).
• Employees / job applicants are protected from being unfairly discriminated against in terms of the EEA and in particular on the grounds listed in Section 6 of the EEA. Therefore, if an employer does not employ a job applicant or refuses an employee entry into the workplace, for instance, based on their objection to be vaccinated on religious or cultural believes, the employee / job applicant may challenge that decision as an unfair discrimination.
• Should an employee be dismissed for refusing to be vaccinated on any unfair discriminatory ground listed in the EEA, an employee may challenge the fairness of his or her dismissal as an automatically unfair dismissal.
• Unilaterally implementing a mandatory immunisation policy in the workplace (without consulting, ideally negotiating, the employees and/or their trade unions to obtain consent/agreement) could result in employees alleging that their terms and conditions of employment were unilaterally amended. This could result in endless unfair labour practice disputes at the CCMA and if upheld could result in the policy being unenforceable.
• Certain employees may raise valid and justifiable health concerns associated with the vaccine. These could range from both short and long-term side effects to the potential complications due to existing medical conditions.
• Employers who compel employees to be vaccinated may run the risk of potential damages claims in circumstances where employees/job applicants adversely react to the vaccine.

Management should invite comments on acceptance to be immunised and any objections from employees not to be immunised. The justifiability of each objection will be determined on a case to case basis after having regard to the nature and reasons of the objection, the nature of the employers industry, workplace, workforce and the degree of risk associated with the failure to be vaccinated, including the employees specific job function and the possibility and feasibility of implementing other reasonable protective measures, short of the vaccine. 

Furthermore, none of the above-mentioned rights are absolute in nature, with each of them possibly being limited, if the requirements of lawful limitation are met, together with the other considerations require such a limitation. A one size fits all approach will not be implementable, because what may be lawful for one individual may not be lawful for another.