On 11 June 2021, the Occupational Health and Safety measures in South African workplaces was updated and officially gazetted, to include specific protocols around Covid-19 vaccinations. The amendments to the Occupational Health and Safety Act states that employers are required to give their employees special leave to get vaccinated against Covid 19. Employees who experience side effects due to the vaccination will be booked off from work and the vaccination certificate should be accepted by the employer in lieu of the medical certificate until the employee has completely recovered from the side effects of the vaccination.
The amendments further require that an additional risk assessment needs to be conducted by the employers. The risk assessment is to determine whether the employer intends to make the vaccination mandatory this assessment must be conducted considering the operational requirements of the workplace and should be based on employees’ risk of transmission through their type of work or the employees’ risk for severe Covid-19 disease or death due to their age or comorbidities. An employer must, in addition to the risk assessment plan, develop or amend its current workplace policies to outline the workplace Covid-19 protocols. The employer should also make provision in their policy for the right of the employee to refuse to be vaccinated on constitutional and medical grounds and should the employee refuse vaccination on medical or constitutional grounds, counselling can be provided to the employee. The employer needs to create the opportunity for the employee to consult a health and safety representative or a trade union member or a mutual employee upon request of the employee.
Should the employee suffer from any side effects, due to the vaccination, the amendments state that the employer must, in accordance with section 22 of the Basic Conditions of Employment Act, place the employee under sick leave for voluntary and mandatory vaccinations. In terms of the directives passed for mandatory vaccination, once the employee’s sick leave is exhausted employees should be given further time off if they have not recovered from side effects. It may be regarded as an occupational disease in which the first three days of absence should be taken as sick leave and if the employee is absent for more than three days, a claim for compensation may be lodged in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA).
With the abovementioned amendments in mind, employers are advised to tread carefully when putting their vaccination plans in place as there are several competing rights and interest that needs to be balanced as the amendments place a great responsibility on the employers to ensure fair treatment of their employees.
For more information on Covid-19 workplace-related matters do not hesitate to CONTACT US.
Charne Sebonka
charne@bbplaw.attorney
Associate
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