Employees’ rights: what does the law say about Covid vaccination?

Illustration: Lisa Nelson

In the past year, the Commission for Conciliation, Mediation and Arbitration (CCMA) has delivered several arbitration awards which have upheld the dismissals of employees who refused to get vaccinated against Covid.

But a recent award has created some confusion about whether this is still allowed and under what circumstances.

On 22 June, CCMA Commissioner Richard Byrne found that it was unfair and unconstitutional for Baroque Medical, which supplies and sells medical equipment, to retrench Kgomotso Tshatshu for refusing to get a Covid vaccination. The company was ordered to pay her 12 months’ salary as compensation (the maximum allowed).

But this contradicts an earlier CCMA award by Commissioner Piet van Staden, delivered in May, who found that Baroque Medical was within its rights to retrench another employee, Cecilia Bessick, who had also refused to get a Covid vaccine.

These conflicting decisions may be understandable, because CCMA arbitration awards do not create binding legal precedent in the same way as court judgments. The most recent CCMA ruling therefore does not set a binding legal precedent that employees cannot be dismissed for refusing to get a Covid vaccine.

The Labour Court has also not yet delivered any binding judgment about whether an employer can fairly dismiss an employee who refuses to get a Covid vaccination. Until this occurs, it is likely the CCMA will continue to give conflicting decisions about whether employers can fairly dismiss employees who refuse to get a vaccine.

Below, we explain what the law currently says about whether an employee can be dismissed for refusing to get a Covid vaccine and under what circumstances.

Labour Relations Act

The Labour Relations Act (LRA) says that an employee can only be dismissed for these reasons: when they are guilty of misconduct; suffer from an incapacity, such as ill health or injury, which prevents them from performing their duties; have to be retrenched because of the economic, structural, technological or similar needs of their employer.

The LRA also requires an employer to follow a fair procedure before dismissing an employee. Usually, this would involve explaining to an employee why they could be dismissed if they refuse to get a Covid vaccine and give the employee an opportunity to explain why they should not be dismissed.

The LRA, however, does not explain whether an employee who refuses to get vaccinated can be dismissed for misconduct or incapacity. The LRA also does not explain whether an employee who refuses to get a Covid vaccine can be retrenched.

Occupational Health and Safety Act

But the Occupational Health and Safety Act does require employers to take all reasonable steps to provide their employees with a safe and healthy working environment. The act also requires employers to take reasonable steps to ensure other people who may be affected by their business activities (such as customers or suppliers) are not exposed to a hazard to their health or safety – such as Covid.

During March, the Minister of Labour issued a Code of Good Practice which explains the steps that an employer should take to manage Covid in their workplace and to comply with their legal duties to provide a safe and healthy working environment.

This code was enacted after a previous directive on managing Covid in the workplace was repealed after the State of Disaster came to an end.

Code of Good Practice

According to the new Code of Good Practice, every employer with at least 20 employees must conduct a “risk assessment” and must develop a Covid plan with the measures it will implement regarding vaccination of employees and when they should be fully vaccinated. When developing the plan, the employer must consult with any representative trade union in its workplace or an employee representative.

The risk assessment and plan, among other things, should identify employees who must be vaccinated and must notify them of their duty to get a vaccination.

The code also states employers can require employees to disclose their vaccination status and to produce a vaccine certificate in order to give effect to the code.

The code further states that employees can lawfully refuse work when there exists a serious risk that they may imminently be exposed to Covid in the workplace. Should this occur, the employer cannot take any action against that employee for refusing to work, such as later dismissing or suspending them from work.

There may be situations where a refusal by employees to work because other employees refuse to get vaccinated, could justify the dismissal of the employees who refuse to get a Covid vaccine. This is because the refusal of many employees to work could affect the ability of a company or business to operate. This could potentially justify retrenchment of employees who refuse to get a Covid vaccine.

However, should an employee refuse to get vaccinated, the code also says that the employer should take steps to reasonably accommodate them in a position that does not require them to be vaccinated. Should an employee produce a valid medical certificate, which provides legitimate reasons why they cannot be vaccinated, the employer can send that employee to another doctor at their own expense.

The code does recognise that it would be unfair to dismiss employees who cannot be vaccinated on valid medical grounds. But, the duty to accommodate employees who refuse to get vaccinated on other grounds would depend on whether an employer has another position available which does not require that employee to be vaccinated. Should the employer not have an alternative position which does not require the employee to be vaccinated, this could be a fair reason to dismiss them.

It is important to note that the code does state that it reflects the policy position of the Department of Labour and that it should be applied until any of its provisions are reversed by a court judgment. Until the Labour Court delivers a binding judgment on when employees can be dismissed for refusing to get a Covid vaccination, it would seem it would be best to follow the provisions of the code.

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