On 9 December 2021, the media reported that Dis-Chem employees had been informed that they have until February 2022 to be fully vaccinated. In the event that an employee does not want to be vaccinated, the employee will be required to present a negative test every week at their own expense before reporting to work.
Employers are entitled to implement a mandatory vaccination policy in the workplace provided they conduct a risk assessment in consultation with the relevant stakeholders (employees, trade unions, health and safety representatives/committees) and develop a plan which outlines the measures that the employer intends to implement in respect of its vaccination of employees. This entitlement is provided for in the Consolidated Direction on Occupational Health and Safety in Certain Workplaces issued on 11 June 2021.
The list of South African employers implementing mandatory vaccination policies in the workplace is growing significantly. Old Mutual and MTN are the two most recent employers to publicly announce the implementation of a policy that mandates vaccines for all their employees.
Many are asking whether it is fair, reasonable and justifiable from an employment law perspective to require employees who are unvaccinated to present a negative test every week at their own cost?
What is the employer already required to pay for?
The Direction requires that employers provide employees at the workplace with the following at the employer’s cost:
- paid sick leave if an employee contracts Covid-19 and is ill or has symptoms;
- paid time off to get vaccinated (employee to provide proof to the employer that vaccination will occur or did occur during the employee’s ordinary working hours);
- physical barriers between workstations and or between employees and members of the public as well as appropriate personal protective equipment if it is not practicable to arrange workstations to be spaced at least 1.5 meters apart;
- screening measures, the purpose of which is to ascertain whether employees have any symptoms associated with Covid-19;
- if reasonably practicable, notices and leaflets placed in conspicuous places in the workplace which raise awareness and inform employees of the dangers of the Covid-19 virus, the manner of transmission, the measures to prevent transmission, the nature of vaccines, the benefits of vaccines and the contra-indications for vaccination;
- if an employee is diagnosed with Covid-19, decontaminate the affected area and or close the office;
- if an employee presents with Covid-19 symptoms and is at the workplace, the employer must isolate the employee, provide the employee with a surgical mask and arrange for the employee to be transported to a public health facility;
- sufficient quantities of hand sanitiser;
- ensure work surfaces and equipment are regularly disinfected before work begins and after work ends;
- ensure there are adequate facilities for washing of hands with soap and clean water;
- ensure paper towels are available as fabric towelling is prohibited;
- provide a minimum of two cloth masks for each employee to wear while at work and while commuting to and from work;
- ensure the workplace is well ventilated by natural or mechanical means to reduce viral load;
- if reasonably practicable, have an effective local extraction ventilation system with High-Efficiency Particulate Air filters that is regularly cleaned, functions effectively and does not re-circulate air; and
- ensure ventilation filters are cleaned and replaced in accordance with the manufacturer’s guidelines.
Where the employer implements a mandatory vaccination policy, the employer is also required to provide the following to employees:
- if reasonably practicable, transport to and from the vaccination site;
- if the employee suffers from side effects due to the vaccination, paid time off to recover if the employee has exhausted the employee’s sick leave entitlement.
The employer has accordingly been required to incur expenses (significant for some employers and insignificant for others) in implementing the basic health and safety protocols introduced in March 2020 when the pandemic started.
Employers remain obliged to comply with those protocols. In the event that they do not comply, they will be acting in contravention of the Direction, which constitutes a contravention of an obligation or prohibition under the Occupational Health and Safety Act (OHSA). OHSA provides for offences and penalties in the event of non-compliance.
If the employee refuses to be vaccinated on medical grounds, the Direction provides that the employer should refer the employee for further medical evaluation. The Direction does not specify which party is responsible for the costs associated with the evaluation. It is probable that the considerations set out below, which relate to payment for testing will be applicable to the payment of the medical evaluation.
Reasonable accommodation and unjustifiable hardship
“Reasonable accommodation” is described in the Direction as “any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities” which was published in terms of the Employment Equity Act. Requiring an employee who does not comply with the mandatory vaccination policy to test regularly should fall within the definition of “reasonable accommodation”.
The Code provides that an employer need not accommodate an employee with a disability if this would impose an unjustifiable hardship on the business of the employer.
“Unjustifiable hardship” is an action that requires significant or considerable difficulty or expense. This involves considering, among others, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.
If it is necessary for the employer to “reasonably accommodate” the employee in a position that does not require the employee to be vaccinated, the question of which party bears the costs associated with the necessary adjustments arises.
Applying these principles to payments for regular Covid-19 tests would involve an analysis of the following:
- the size of the employer’s organisation;
- whether the employee is required to submit to a polymerase chain reaction (PCR) test or a rapid antigen test (rapid test), the costs and accuracy of which differ;
- how many employees would be required to undergo testing, i.e. how many employees fail or refuse to vaccinate;
- how the employer would satisfy itself that the test results were genuine and how quickly it would be able to do so. It was recently reported that counterfeit Covid-19 negative test results are easily available for a fee which is lower than the cost of either type of test;
- how often employees would be required to test;
- the validity period of the test.
The Competition Commission announced on 12 December 2021 that the price of the PCR test had been reduced to R500 with immediate effect and that it intended to address the costs associated with the rapid test in due course with a view to reducing them.
In order to determine whether it would be necessary for an employer to incur the costs associated with Covid-19 tests for employees who refuse or fail to vaccinate, a practical example is useful:
- the employer employs 20 000 employees;
- five per cent of its employees refuse or fail to vaccinate; and
- the employer requires that the employee produce a negative test every two weeks.
In this example, if the employer were required to pay for PCR tests for one thousand employees every two weeks, it would incur additional expenditure in the amount of R1 million per month. This does not include the costs associated with ensuring that employees attend reputable laboratories and obtain valid test results. Our courts would probably conclude that this cost would fall within the definition of “unjustifiable hardship”.
Coupled with the cost consideration is the efficacy of the measure. In circumstances where it is possible to contract the Covid-19 virus within minutes of submitting to a test, it may be argued that this form of accommodation may not be particularly effective but constitutes a genuine attempt by the employer to reasonably accommodate an employee who fails or refuses to comply with its mandatory vaccination policy rather than terminate the employee’s employment.
This is a complex question to which is there is no uniform answer. The particular circumstances of the employer and the reasons for the employee refusing or failing to vaccinate will be determinative of whether it is reasonable and justifiable for the employer to be burdened with the costs of paying for Covid-19 tests. This assessment may have to be undertaken in relation to categories of employees and, in certain circumstances, individual employees.
This article was first published by News24.
For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact: