Mandatory Covid-19 Vaccinations in the Workplace: Compensation for Injuries or Death

MANDATORY COVID-19 VACCINATIONS IN THE WORKPLACE

COMPENSATION FOR INJURIES, ILLNESS OR DEATH

 

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THIS NEWSLETTER IN SUMMARY:

 

1. Employees can claim compensation only if numerous unqualified, yet stringent requirements are met.
2. Our assessment is that it will be nearly impossible for employers requiring all employees to be vaccinated to prove compliance.
3. The notice from the Compensation Fund (dealt with extensively herein) must not be interpreted to establish any law, regulation or rule that employers may subject their employees to vaccine inoculation against their will.
4. Employers are advised to, as far as possible, steer clear of mandatory vaccination policies, as there are simply too many pitfalls and risks.

 

Dear employer

 

The Compensation Fund Commissioner, on 22 October 2021, published a notice (‘the notice’) in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA), in terms of which employees, who suffer side effects, including injuries, illness or death, as a result of receiving a COVID-19 vaccine, may now claim compensation from the Compensation Fund (‘the Fund’).

 

However, as per usual, there is much more to this notice than meets the eye.

 

For an employee to claim from the Fund, a number of prerequisite requirements must have been met.

 

The notice stipulates that an employee may only claim for injuries, illness or death as a result of receiving a Covid-19 vaccine, where:

 

• the employee was required by the employer to be vaccinated as an inherent job requirement of employment; or
• vaccination was required based on the Occupational Health and Safety (OHS) risk assessment conducted by the employer.

 

In addition, the following requirements must be met:

 

• in order for the employee to successfully claim, the mandatory vaccination must be regarded as an inherent job requirement by the employer, by virtue of his risk assessment, conducted in terms of the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces (‘the directions’);
• evidence must be provided of the employer’s risk assessment and vaccination plan, as set out in the directions;
• the employee must have received a SAHPRA-approved vaccine;
• the sequence of vaccination and the development of symptoms must be provided;
• the employee must have presented with symptoms that are generally recognised as side effects of Covid-19 vaccines; and
• additional tests may be required to assess the presence of abnormalities of any organ affected.

 

From the above requirements two interlinked scenarios emerge under which an employee will be able to claim from the Fund for the mentioned side effects due to a Covid-19 vaccine:

 

The first is where vaccination is an inherent requirement of a particular job. This is seemingly a new category of employee, who may be required to be vaccinated, as the term “inherent requirement” of a particular position, does not appear in the directions. The OHS directions state that the operational requirements of the employer must be taken into account, but this does not equate to an inherent requirement of the job. The only mention of “inherent requirements” in labour law, are to be found in the Employment Equity Act (EEA) and the Labour Relations Act (LRA), where it may be utilised as a defense against claims of discrimination.

 

The notice indicates that the inherent requirement is to be determined by virtue of the risk assessment to be conducted by the employer in terms of the OHS directions, which assessment is to be used to determine if the employer will implement a mandatory vaccination policy, and if so, which employees will be required to be vaccinated. It can therefore be assumed that the term “inherent requirement” should be read into the OHS directions as well.

 

The problematic issue with this is that “inherent requirement” is not defined in any labour legislation. It has been suggested that, based on case law, the inherent requirements of the job should be analysed within the matrix of the following criteria:

 

• it must be a permanent feature of the job;
• it must be essential to the job; and
• it must be indispensable to the performance of the work.

 

It would be difficult to fathom a scenario, where an employer will be able to indicate that a person has lost the inherent ability to perform his/her core duties as a result of not being vaccinated. This will be almost impossible to prove, in particular for employers requiring all employees to be vaccinated.

 

The second scenario where an employee may be able to claim, is where the employer has required vaccination based on the OHS assessment, as determined by the OHS directions. These assessments are extremely burdensome and will require an employer to do the following:

 

• Conduct a risk assessment, taking into account the specific circumstances of the workplace, as well as the requirements of the Occupational Health and Safety Act Regulations for Hazardous Biological Agents. The regulations in respect of biological agents, on their own, are extremely cumbersome and time consuming to comply with.
• If, after the completion of the risk assessment, the employer decides to implement a mandatory vaccination policy, it will have to determine which employees, due to their risk of transmission through their work, or by virtue of their risk for severe Covid-19 disease or death due to comorbidities, must be vaccinated.
• Develop a return-to-work plan, in consultation with representative trade unions and health and safety committees, as to which employees must be vaccinated, who may return to work, who may work from home etc.
• Provide evidence of the risk assessment and vaccination plan.
• Prove that the affected employee received the vaccine as a result of the employer’s requirement to do so, and not by his/her own volition.

 

Only if all these requirements have been met and proven by the employer, will the employee be able to claim for any of the mentioned side effects, from the Fund.

 

The notice also states the following:

 

“This notice must not be interpreted to establish any law, regulation or rule that employers may subject their employees to vaccine inoculation against their will.”

 

It is therefore clear that:

 

• the vaccination of all employees is not envisaged, and only those identified in terms of the risk assessment may be able to claim if all other requirements are met;
• employees may not be forced to be inoculated; it may however be argued that forcing an employee to elect between being vaccinated or being dismissed, is nothing other than forcing the employee to be vaccinated;
• mandatory vaccination policies in the workplace should be approached with extreme caution, as the implementation thereof may pose severe risks for the employer; and
• where an employer has implemented a mandatory vaccination policy, and all the above-described requirements have not been met, the employee will not be able to claim from the Fund and may well institute legal action against the employer for damages based on delict.

 

Employers are therefore advised to, as far as possible, steer clear of mandatory vaccination policies, as there are simply too many pitfalls. Employers should rather utilise alternative measures, i.e., wearing of masks, screening, work from home etc. to safeguard the workplace and avoid running the risk of being held accountable for adverse effects or other infringements.

 

For more information:

NEASA Media Department

media@neasa.co.za