One of the difficult questions that has arisen when employers implement a mandatory vaccination policy, is whether a suspension for being unvaccinated for Covid-19 is legally permissible.
A directive was issued on 11 June 2021 in terms of the Disaster Management Act, providing for the possibility of employers implementing mandatory vaccination policies based on a risk assessment which determines that this is necessary.
Such policies may require employees to vaccinate, but must allow for employees to secure exemptions from vaccination on valid medical or constitutional grounds.
The question that arises is whether, if an employee refuses to vaccinate and does not secure an exemption, the employer may suspend that employee or bar him or her from working until the employee has complied with the policy or secured an exemption.
The CCMA recently had occasion to consider this issue, and it concluded that where an employee is prevented from coming to work on this basis, that would amount to a suspension. As to whether or not that suspension is an unfair labour practice (an unfair act by the employer towards the employee), the CCMA found that it was not unfair and that the employer was within its rights to implement the suspension for being unvaccinated.
There have also been cases where employers have terminated employees’ employment for being unvaccinated. One recent case involved an employee who was subjected to an incapacity process in which the chairperson concluded that the employee had incapacitated herself by choosing not to be vaccinated. She challenged her dismissal in the CCMA, and the CCMA found in favour of the employer and concluded that her dismissal was fair.
Despite these two CCMA decisions which went in favour of the employer, there is no one-size-fits-all model, and each case will have to be determined on its own merits. There may be cases, for example, where the risks relating to Covid-19 are so low that it is not justified for the employer to impose a mandatory vaccination requirement at all. In those cases, it is likely that any dismissal or suspension for being unvaccinated will be unfair.