Companies have said they can fire workers who refuse Covid-19 vaccines – but it’s not that simple
A patient is vaccinated against Covid-19.
- As South African companies consider mandatory vaccination policies, employers are encouraged to explore a range of options for accommodating workers who reject the vaccine.
- But one option could be to separate from these employees, they were told.
- Workers may object to taking the vaccine for religious, constitutional and medical reasons.
- If they cannot be accommodated in the workplace, employers may consider terminating their employment due to operational requirements and grounds of incapacity.
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South Africa’s Department of Labor recently updated its guidelines for dealing with Covid-19 in the workplace, which now requires companies to state whether they plan to make vaccinations mandatory.
At the National Council for Economic Development and Labor (Nedlac), the government and the private sector agreed that workers’ refusal to take the Covid-19 vaccine should not justify dismissal. But, last week, Business for South Africa (B4SA) told companies revised guidelines do not prohibit employers from sacking workers who reject vaccine.
“There is nothing in the revised Occupational Health and Safety Directive that prohibits an employer from terminating an employee who has been identified as high risk and who has refused to be vaccinated (and cannot be reasonably accommodated), ”B4SA told constituents.
“… But employers are encouraged, before considering such action, to seek legal advice given the complexity of such a dismissal,” B4SA said.
Before considering a claim, employers should first conduct a risk assessment of their workplace to determine the category of employees who are required to be vaccinated, said Riola Kok, professional support lawyer at the firm of ‘lawyers CDH.
According to Kok, there are two main reasons you could be fired for refusing to get the vaccine if you are a high-risk employee and cannot be accommodated in the workplace.
After examining the employee’s grounds for refusal, such as medical, religious, constitutional and cultural grounds, the employer is mandated to assess whether it is necessary for the employee in question to be vaccinated and whether he or she belongs to a high risk category where vaccinations are mandatory.
Treating layoffs on a case-by-case basis will determine the fairness of the dismissal and the employee’s role, work environment, alternatives provided to them or not, and their grounds for objection should be taken into account, said Kok.
Workers can be made redundant based on the operational requirements of the employer, which would lead to a standard layoff, Kok said.
“Dismissal for operational reasons, being a standard form of dismissal, [could mean] you don’t fit into the flowchart anymore because you refuse to get vaccinated where all employees in that category need to be vaccinated, ”Kok said.
The company could argue that a particular high-risk category of Covid-19, due to the vaccination requirement, has had to undergo restructuring and is disqualifying workers who refuse the vaccine, she said.
“In a situation where this is an employee that we have identified needs to be vaccinated because of their job, the vaccine is available to be administered and there is a refusal and you need someone in that position , then the employer should go the route of operational needs, ”she said.
Workers can also be fired for incapacity when an employee is simply unable to perform the duties required of them, or for medical reasons.
“It can also be a disability issue; it could be a medical incapacity or it could simply be that you cannot perform the job at the level required of you, ”Kok said.
“And then again, the employee may need to go through the regular incapacitation process, which includes a discussion with the employee to let them know where they are not meeting the standard,” Kok said.
In this case, the company is obliged to help the worker to improve himself in the performance of his duties.
“… and if there is no improvement then you would have an inability to hear a dismissal afterwards,” she said.
“Where you have employees, for example who don’t really need the vaccine because of the nature of their job; they don’t interact with the public, maybe they don’t even interact with other employees because they are sitting in an office. and they can self-isolate… there is just no need for this employee to make the vaccinations mandatory, ”Kok said.