One of the issues that employers are currently dealing with, is whether they may require employees to take the covid-19 vaccine, and if employees do not do so, whether a dismissal for refusing to vaccinate is an option.
On 11 June 2021, the Minister of Labour published directions dealing with this issue.
The directions allow employers to introduce a mandatory vaccination policy which makes it compulsory for employees to take vaccines when they are eligible to do so. It follows from this, that employers may take disciplinary action against an employee who acts in breach of the policy.
However, the matter is not that simply. The directions provide for certain limitations on when employees may be required to vaccinate. They are entitled to refuse to vaccinate on constitutional grounds (for example, where this would be in breach of their religious rights), and on medical grounds.
The directions also provide that where an employee refuses to vaccinate on legitimate grounds, the employer must attempt to accommodate the employee. Such accommodation could include permitting the employee to work from home or in an isolated environment.
Where such accommodation is not possible, and where the unvaccinated employee’s presence at the workplace poses a risk, it may be possible for employers to consider dismissals based on incapacity. This area is, however, not straightforward and comes with significant risks. It requires a fair procedure to be used (which would ordinarily entail an incapacity inquiry), and in the incapacity scenario, employers have onerous obligations when it comes to accommodating employees in alternative roles or circumstances.
The issue of covid vaccination in the workplace is a novel area, and one in which there is not yet a developed body of judgments from our courts. As a result, it is new territory for employers and employees, and there are likely to be many disputes in the CCMA and in the Labour Court around dismissal for refusing to vaccinate in the coming years.