The department of employment and labour released its latest Consolidated Direction on Occupational Health and Safety on June 11. Since then a number of employers have relied on the mechanisms set out in the directions to establish mandatory vaccination policies.
In short, the directions allow, but do not require, an employer to undertake a risk assessment to determine whether it will make the vaccination of employees mandatory. The risk assessment must assess whether mandatory vaccinations are necessary, based on the operational requirements of the employer. The employer may therefore decide, after the assessment and taking into account its operational requirements and working environment, that it will not do so.
Operational requirements in this case are not elaborated on in the directions, but are likely to encompass factors such as whether employees operate remotely, social distancing limitations and sensitisation measures in the workplace, the usage of PPE and the prevalence of Covid-19.
If the employer does intend to make vaccination mandatory, it is required to identify the employees for whom this is necessary, based on their risk of transmission of Covid-19 through work and/or their risk for severe Covid-19 or death due to factors such as age or comorbidities. As such, it is essential to note that the employer does not have to adopt a vaccination policy that requires all of its employees to be vaccinated and the policy can require only those employees who are at risk, as assessed, to be vaccinated. If the employer concludes that it will not adopt a mandatory vaccination policy there should also be objective reasons as to why.
If there is mandatory vaccination for any category of employees, the employer must notify the employee of the need to be vaccinated. The directions do not require the employer to obtain or pay for the vaccine, but it would be reasonable for the employer to assist the employee to register for private or public vaccination.