Can your employer force you to take the Covid-19 jab? Minister Thulas Nxesi clears the air

Companies should find a reasonable resolution that accommodates all parties when employees refuse to be vaccinated on medical or constitutional grounds.

This is according to employment and labour minister Thulas Nxesi, who issued new directives for workplace vaccinations this week. 

Nxesi said this formed part of the new consolidated direction on occupational health and safety measures in certain workplaces. 

Sunday Times last month reported that businesses, labour and government reached an agreement at Nedlac regarding workplace Covid-19 vaccine guidelines. 

Employees will be encouraged to get their jabs and will be given paid time off to do so, but cannot be dismissed for declining the vaccination.

Employees can refuse to get be vaccinated on constitutional grounds as part of their right to bodily integrity in section 12(2) and the right to freedom of religion, belief and opinion in section 13 of the constitution. 

Nxesi said medical grounds refer to issues of an immediate allergic reaction of any severity to a previous dose or a diagnosed allergy to a component of the Covid-19 vaccine.

Three-step risk assessment

He said a mandatory vaccination policy can only be included in a company’s risk assessment plan by doing the following three-step inquiry:

• It must make that assessment taking into account the operational requirements of the workplace. This means the direction does not make the vaccinations mandatory, but every employer must take into account its general duties under the Occupational Health Safety Act to provide a working environment that is safe and without risk to the health of employees and other people who may be directly affected, and that they are not exposed to hazards to their health or safety.
• If the employer decides to make it mandatory once the risk assessment has been conducted, it must then identify which employees will be required to be vaccinated. In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe Covid-19 disease or death due to their age or comorbidities. 
• After identifying employees who are required to be vaccinated, it must amend its plan to include the measures to implement the vaccination of those employees as and when Covid-19 vaccines become available to them, taking into account the guidelines set out in the direction. 

Nxesi said given the phased nature of the national vaccination programme based on criteria, employers can only require employees to be vaccinated once they become eligible and have been registered on the electronic vaccination data system (EVDS) and given a date for vaccination.

“What is critical is that we need to balance the needs and take into account 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 Nxesi.