SA records 566 new COVID-19 cases bringing total cases to 3 704 784.
By Lehlohonolo Lehana.
The National Institute for Communicable Diseases (NICD), reports 566 new COVID-19 cases that have been identified in South Africa, which brings the total number of laboratory-confirmed cases to 3 704 784.
This increase represents a 3.9% positivity rate.
Due to the ongoing audit exercise by the National Department of Health (NDoH), there may be a backlog of COVID-19 mortality cases reported. Today, the NDoH reports 9 deaths and of these, 4 occurred in the past 24 – 48 hours. This brings the total fatalities to 99,890 to date.
A Labour Court judgment recently considered the lawfulness of an employer’s policy regulating how employees would be allowed to access work in the context of the Covid-19 pandemic, notes Webber Wentzel.
The case centred on the legality of an employer's admission policy that barred employees from entering the workspace unless they had been either fully vaccinated and provided proof of vaccination or, in the case of employees who chose not to vaccinate or disclose their vaccinations status, could produce a negative Covid-19 test result in every week at their own cost.
"The Labour Court upheld the employer’s right to require employees to have a Covid-19 vaccination or provide a weekly negative test if they decline to be vaccinated, but it leaves several important questions unanswered, said Webber Wentzel.
A major question stemming from this case was whether the admission policy constituted a mandatory vaccination policy.
Due to the employee failing to furnish any evidence that proved to the Labour Court that the policy was a mandatory vaccination policy, the procedure provided sufficient options for people that chose not to vaccinate and was in line with the employer’s statutory duty of providing and maintaining a working environment that is safe and without risk to its employees' health.
The Labour Court could not deem the policy a mandatory vaccination policy.
Despite this finding, Webber Wentzel said that there are further 'burning' questions that need to be resolved, including:
- Whether requiring PCR testing as an alternative to mandatory vaccination is reasonable when asymptomatic Covid-19 positive persons are no longer needed to isolate and, in effect, are permitted to enter a workplace;
- Whether even if an employer decides Covid-19 testing is an alternative to vaccination, can that employer require the employee to bear the costs of testing in the face of safety legislation generally and the BCEA; and
- How can employers justify disciplinary or related action against employees who are excluded from the workforce if they could be accommodated by, for example, work-from-home arrangements.
Webber Wentzel said that it remains to be seen if any of these subjects will be challenged legally. However, it is increasingly accepted that employers are entitled to implement a mandatory vaccination policy and regulate access to the workplace.
"If the policy is properly formulated and considered, it will probably pass Constitutional scrutiny."
"In this case, the employee said that she was unwilling to have the Covid-19 vaccination but would take a weekly test for Covid-19 if the employer paid for it. The employer was not willing to do so, and the employee was denied access to the premises," said Webber Wentzel.
After consulting a medical practitioner that issued a “Covid-19 vaccination exemption form” based on “cardiac arrhythmia” [A condition where one’s heartbeat is irregular], the employee approached the employer.
The employer stood by its policy and required further information about the mentioned medical condition due to only an ECG report being provided but no cardiologist’s report.
A third party then brought an urgent application seeking an order to declare the admission policy unlawful and to direct the employer to permit the employee to tender her services as outlined in her employment contract, Webber Wentzel said.
Labour Court findings
"The Labour Court was only required to determine lawfulness based on the contract of employment and the Consolidated Direction issued in terms of the regulations to the Disaster Management Act, 2002 and the Occupational Health and Safety Act, 1993 (OSHA)," said Webber Wentzel.
The court ruled that it did not need to question:
- Whether the policy put in place by the employer was fair or reasonable;
- Whether it infringed upon the employee’s constitutional rights;
- Who should bear the costs of the testing;
- If weekly testing was unreasonable.
The employee argued that their contract of employment:
- Does not require mandatory vaccinations or the submission of weekly Covid-19 test results;
- Does not have to be read in conjunction with the provisions of the OHSA and all regulations and directives issued under the Act; and
- That the policy does not comply with OSHA for various reasons, including an alleged failure to conduct a risk assessment and consult on that assessment.
Thereafter, the employer said that it was not a mandatory vaccination policy and that the employee was actually in breach of their contract.
The court found that Clause 8 of OSHA which requires employers to provide and maintain a working environment that is safe and without risk to the health of its employees was unambiguous in its aim and that the Consolidated Direction is binding law.
As a result, the Labour Court upheld the employer’s right to require employees to have a Covid-19 vaccination or provide a weekly negative test if they decide not to be vaccinated, said Webber Wentzel.
Commentary by Brett Abraham and Mehnaaz Bux, Partners at Webber Wentzel.