1 July 2021
While employers cannot force workers to be vaccinated, there are various grounds for dismissing workers who object, provided they have conducted a thorough risk assessment to determine the need for vaccination. They also need to provide every possible reasonable solution to accommodate them.
In attempts to return to normal and revive an economy battered by the coronavirus pandemic, South Africa aims to have administered Covid-19 vaccines to 67% of the population, or about 40 million people in the country, by February 2022.
While many companies operating remotely may have plans to return staff to offices; whether on a full-time basis or a hybrid model, a key consideration will be vaccinations.
One of the grounds on which an employer can let go of workers who refuse the jab can be refusing to share medical information if they wish to be exempt from their workplace’s vaccine programme for medical reasons.
If an employee objects on medical grounds, they may be sent for medical testing to prove the veracity of their claims, Riola Kok, a professional support lawyer at law firm CDH in the employment practice, said.
“Employers must ensure that they are obtaining the consent of their employees before they send them for medical testing and that all the provisions of the employment equity act in relation to discrimination are very closely complied with,” Kok said.
However, an employer can make the disclosure of medical information mandatory for a public policy reason, Christoff Pienaar a director and the country head of technology, media, and telecommunications practice at law firm CDH said.
Companies can argue that there’s a public health reason and that mandatory vaccination and information about it are critical for the organisation and necessary for the company to continue its operations, he said.
For instance, a Covid-19 positive worker who may have refused vaccination and withholds that information could endanger fellow employees, resulting in people taking sick leave and making claims against the company, he said.
“An employer can include, as part of an employment policy or a workplace vaccination policy, that vaccination outcomes and Covid status be disclosed,” he said.
“And if the employer can show that the non-disclosure of it prevents the company from operating, or obviously endangers others, it can go as far as dismissing the employee,” Pienaar said.
Priscilla Sekhonyana, spokesperson of the Health Professions Council of South Africa, said that while registered health practitioners can be approached for a patient’s medical details, any personal information can only be shared in alignment with the council’s ethical rules and regulations.
“Confidential information can only be shared with [the] express consent of the relevant parties. Any of the personal information can be shared if all parties expressly grant such permission,” she said.
However, in some instances, the law can require that medical professionals provide certain information, she said.
“The law or [a] court order is one of the obligatory circumstances which can be used to compel a practitioner to provide confidential personal information,” she said.
Before considering dismissing workers who opt to withhold medical information, the employer must have stated an obligation to disclose, usually in an employment contract or employee policies, said Pienaar.
“If there’s a contravention of that, obviously the company can follow disciplinary action in a normal course,” he said.
Kok said employers should take care not to discriminate against workers based on their vaccinations status.
“The POPI Act does have fines and imprisonment for the contravention of its provisions, and so employers must ensure that employers don’t discriminate on the basis of whether or not someone accepts the jab,” Kok said.
(Compiled by Ntando Thukwana)
Source: Business Insider South Africa at https://www.businessinsider.co.za/protection-of-personal-information-act-and-covid-19-workplace-vaccinations-in-south-africa-2021-6