A guest article by Jan Kemp Nel Snr and Jan Kemp Nel Jnr, Authors of Employment Contracts for the New World of Work.
On 11 June 2021 (a few days after the publication of our new book Employment Contracts for the New World of Work) the Department of Employment and Labour issued an updated Consolidated Directive on Occupational Health and Safety. Amongst other things, this directive expressly permits an employer to implement a mandatory workplace vaccination policy (subject to specific guidelines).
When implementing a mandatory workplace vaccination policy, the department has cautioned employers to ensure the rights of employees to bodily integrity and religious freedoms and beliefs are taken into account.
The updated Consolidated Directive confirms and verifies the factualness of the advice provided in our new book (on page 62) as per the following clause:
- The employee agrees that it may become necessary, dependent on prevailing safety and health, socio-economic and legal (inclusive of statutory) requirements, for the employee to be vaccinated in response to a health threat that could compromise the business of the employer;
- The employee also agrees that the employer can validly require the employee to be vaccinated dependent on circumstances and/or the needs of the employer;
- A process of mandatory vaccination shall be in compliance with constitutional and statutory prescriptions;
- Provided that the employee is at liberty, at any time, to be vaccinated on a voluntary basis and to provide the employer with proof of such vaccination administered.
So how should you update your employment contracts?
In addition to the above, the sample “Health and Safety and Medical Examination Policy and Guideline” provided for in the toolkit section (page 197 of the book) is 100% in compliance with the new statutory regulations.
We repeat paragraph 4 of the policy referred to hereinabove as follows:
- The obligation to ensure that the workplace is a safe and healthy environment conducive to optimal productivity rests primarily with the employer. Decisions in respect of mandatory vaccinations, medical testing and medical treatment can and will be made dependent on prevailing circumstances and applicable legislation.
- The OHSA requires an employer to provide and to maintain a safe and healthy work environment both for the employees as well as for other persons who have access to its premises, such as clients, suppliers or contractors. On this basis the Company can refuse entry to the premises of any person who may have positive symptoms in respect of any health threat, and/or provide for access measures to the premises in this respect.
- With regard to voluntary vaccinations, the Company reserves the right to require from employees (on a consensual basis) to provide documentary proof of the date and administering of such vaccination (if the same was in fact administered). The employee’s vaccination status would constitute health information in terms of the Protection of Personal Health Act (“POPI”) and can only be processed by the employer in limited instances, with the consent of an employee. Such consent shall not unreasonably be withheld by the employee.
- In respect of mandatory vaccinations, consultations will take place individually or collectively with employees in order to reach agreement with due regard to all circumstances, inclusive of the public interest and public health considerations, as well as statutory regulations and measures.
Are your policies and contracts outdated for the new world of work?
It’s essential for employers to update their employment contracts to adjust and adapt to the changing demands and realities of a post-Covid workplace. Contracts and letters of appointment will have to be reworked and amended to incorporate new terms, or to amend existing ones, inclusive of policies and procedures. And contentious and difficult issues will need to be concisely and professionally dealt with, such as: Salary reductions, repackaging of benefits, medical testing, vaccinations, penalty clauses, working from home and constitutional privacy and electronic surveillance!
If you haven’t already secured a copy of our new book Employment Contracts for the New World of Work you can get a copy here. This new book includes sample contracts, guidelines, policies, procedures and statutory regulations to help you update your own policies and contracts.
And on 4 and 5 August we’ll be hosting an Employment Contracts Update Workshop. This two-day, virtual workshop will help you decide what changes you need to make, draft ideal amendment clauses and then design an implementation strategy for amended clauses, or new contracts, policies and procedures. You can learn more about this workshop – here!