Amended Occupational Health and Safety Direction

The Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“Direction“) was published by the Minister of Employment and Labour on 11 June 2021. Employers are obliged to notify employees about the contents of the Direction and the manner they intend on implementing it. Employers should take note of the Direction if they intend on implementing a policy prescribing mandatory vaccines for employees.

The Direction contains provisions for the mandatory vaccination of employees in the workplace – a highly pertinent issue during the age of COVID-19. The Direction also concerns specific provisions relating to risk assessment, administrative measures, and symptom screening. These provisions are discussed in further detail below.

Direction 3 is titled ‘Risk assessment and plans for protective measures’ and makes provision for the implementation of mandatory vaccines. Employers who desired to implement mandatory vaccination policies had to indicate within 21 days of effective date of the Direction (11 June 2021) to indicate whether, based on the operational requirements of the workplace, they would do so. This 21-day window closed on 2 July 2021. The Direction makes no provision for employers who missed the 21-day window period to indicate their desire to implement mandatory vaccination policies. Employers who did not make such indications seemingly cannot implement . Nonetheless, Direction 3(1)(a) still obliges employers to undertake risk assessments, which consider the workplace’s specific circumstances, to affect its minimum measures.

In response to the nationwide rollout of COVID-19 vaccines, administrative measures under the Direction at 4(1)(i)(ii) now oblige employers to provide employees with information raising awareness of the nature of the vaccines used in the country, their benefits, and risks of side effects. Employees can achieve this by making vaccination awareness materials available conspicuously.

Further updates to administrative measures include sub-direction 4(1)(k), which obliges employers to give administrative support to assist employees in registering on the Electronic Vaccine Data System Registration Portal. Another update appears under sub-direction 4(1)(l), which provides that employers must provide employees with paid time off to be vaccinated. Employees must, in turn, provide proof of the vaccination.

Direction 6, is titled ‘Symptom Screening’. Under sub-direction 6(3)(b)(iii), where an employee presents at work with COVID-19 related symptoms, employers must immediately place the employee on paid sick leave in terms of the BCEA. Or, where the employee’s sick leave entitlement under the BCEA is exhausted, the employer must apply for an illness benefit under the Unemployment Insurance Act 63 of 2001. This would entail placing the employee on unpaid leave and then claiming back the statutory benefit, which would be payable to the employee. The position where sick leave has been exhausted has changed from the previous direction. The old direction, which is no longer in effect, allowed for a claim under the COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”) where sick leave had been exhausted.

Additionally, under sub-direction 6(9), employees who suffer side effects resulting from the vaccination and cannot attend work have the entitlement to be placed on paid sick leave in terms of the BCEA.  Employers may accept a COVID-19 vaccination certificate in place of a medical certificate.

With Directions under constant revision, employers should be aware of the changes and look to their governing bodies for guidance if in doubt.

A discussion on mandatory vaccine policies in the workplace can be found here.

A copy of the direction can be obtained here:  Labour Relations Act: Consolidated direction on occupational health and safety measures in certain workplaces (www.gov.za)

The Vaccination Programme registration portal can be accessed here: COVID-19 Vaccine Registration (health.gov.za)

Should you anticipate the need to implement a policy prescribing mandatory vaccines for employees, you should consult a legal advisor to ensure you will not fall foul of any labour laws.