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From a legal perspective, what are the most important steps an employer must take to curb the spread of COVID-19 in the workplace, particularly now that vaccinations have been rolled out?

Vaccinations are proven to be an efficient measure to mitigate the risks of COVID-19 and are therefore encouraged by our government to assist with those risks. Many employers are encouraging the same from their workforce.

Legally an employer must abide by the regulations that govern the alert level at that point in time. On Monday 13 September 2021 President Cyril Ramaphosa shifted South Africa down to adjusted Alert Level 2, governed by the amended regulations of 12 September 2021. These regulations state the following in relation to employers:

  • An employer may not allow any employee to perform any duties or enter the employment premises if the employees are not wearing a face mask while performing his or her duties;
  • Every business premises is required to determine their area of floor space in square metres and based on that calculation determine the number of customers/clients and employees that may be inside the premises at any time with adequate space available, and on the basis of providing for social distance of 1,5 metres between persons;
  • Steps must be taken to ensure that employees and/or other persons (i.e. customers/clients) queuing inside or outside of the business premises are able to maintain a distance of 1,5 metres from one another;
  • Hand sanitisers must be provided for use by employees and their customers/ clients at the entrance to the premises; and
  • Assign, in writing, an employee or any other suitable person, as the compliance employee who will ensure the above is adhered to as well as that all regulations in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.

The regulations require all employers to adopt measures that promote physical distancing of employees including; enabling employees to work from home (where applicable) or minimising the need for employees to be physically present at the business premises, the provision for adequate distancing and limiting face to face meetings, and special measures for employees with known or disclosed health issues or comorbidities which may place such employees at a higher risk of complications or death if they are infected with COVID-19.

Some companies are making vaccinations a mandatory condition of employment, is this legal?

At this point in time, some South African companies are making vaccinations a mandatory condition of employment, however the topic of mandatory vaccinations is still controversial. An updated ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ was gazetted on 11 June 2021 (‘the Direction’). The Direction contains a range of new requirements for risk assessment, plans and measures surrounding imposing a mandatory vaccination policy. Employers are required to draft and implement policies to this effect after intensive consultations with its employees, the recognised union/s within the organisation and the human resources department within the organisation.

Significantly, the Direction does not apply to all workplaces.

Can an employer force an employee to disclose his or her vaccination status?

An employee cannot be forced to disclose personal information as is described by the Protection of Personal Information Act 4 Of 2013 (“POPIA”). This is even more applicable if the information is categorised as ‘special personal information’ and POPIA identifies one’s ‘health-related’ information as ‘special personal information’. Employees can only be expected to voluntarily disclose their vaccination status to their employer.

 

What can an employer do if an employee requests time off during work to receive a vaccination, would this come off their sick leave?

The Direction requires employers to give employees paid time off (a) to be vaccinated against COVID-19, and (b) to recover should the employee experience adverse side effects from the vaccination. An employer must give its employees paid time off to be vaccinated. The employee may then be required to provide proof of an appointment to be vaccinated. Therefore, if an employee requests time off during working hours to be vaccinated, this should not be deducted from their sick leave. Regarding ‘sick leave’ the guidelines to the Direction (which again, only apply where a 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’.

 

In the situation where an employee has missed an extensive number of sick days due to COVID-19 or the side effects of the vaccine, can an employer take time off an employee’s annual leave?

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 Basic Conditions of Employment Act 75 of 1997 (“BCEA”) place its employee on sick leave’. The guidelines to the Direction further state 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”). Again, it very important to note that this applies if vaccination is mandatory.

In closing and since the Direction and its guidelines are rather confusing and give rise to several questions, until such time as the Direction is amended to provide more clarity it is suggested that employers adopt the following approach:

  1. Employees should be allowed paid time off to be vaccinated during working hours. It should be regarded as ‘special leave’, not sick leave.
  2. A vaccination certificate issued by an official vaccination site or immunisation card (as is the case after the first dosage of the two-dosage vaccine) should be accepted as proof.
  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.

For more information, please contact Refiloe Vengeni.