An employer can encourage its employees to be vaccinated and can take steps to achieve this however unless it can show that it would be an inherent requirement of the job, thus affecting the capacity of an employee to perform his or her job. This would be true for example in the health and often allied industries where employees are required to work in close contact with people and thus are at risk from either themselves transmitting the virus or from contracting the virus from an infected person and in turn infecting his/her fellow employees and others such as their patients.
In order for an employer to be able to properly deal with this new phenomena employers are encouraged to review their policies particularly pertaining to the health, safety and welfare of its workforce.
An employer may wish to revisit the working environment to such an extent that remote working, if at all possible within the business itself, becomes the new norm, which would obviously decrease the risk to the employer and in turn the workforce. This comes with its own difficulties which will also need to be addressed in the policies and procedures. What comes to mind immediately is the employee’s performance of his duties; as well as the management of the employee and working within the corporate culture as a whole.
The employer needs to consider the scenario where working remotely is not always feasible and needs to take the necessary precautions. This may mean the testing of an employee upon reporting for duty and possibly treatment for the contraction and transmission of the virus, not only involving an individual employee but the workforce as a whole.
This medical testing brings with it a whole new dynamic in that in terms of the provisions of the Employment Equity Act (“EEA”) more specifically (section 7(1)(a)). Medical testing is very broadly defined in the EEA as “includes any test, question, enquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition”
In terms of this section an employer would need to establish that “it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job” (section 7(1)(b)), before making this a condition precedent in other words formulating rules regulating compulsory medical testing.
Employers are urged to seek legal advice before going ahead with these policies and procedures to accommodate the new challenges posed as a consequence of the pandemic as there is a minefield out there.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact us at litigation@devillierslaw.com or 012 111 9281
