In mid-February 2021, the South African government began rolling out the much-anticipated phased Covid-19 vaccine strategy, which prioritises those most vulnerable to infection and/or health complications if infected. The vaccine is being rolled out in three phases:
Phase 1: The country’s estimated 1.2 million frontline healthcare workers.
Phase 2: Essential workers, persons in congregate settings, persons over 60 and persons over 18 with co-morbidities.
Phase 3: The remaining 22 million members of the population over the age of 18.
At the time of writing, about 67,000 healthcare workers had been vaccinated within the first 10 days of the rollout. This progress is promising. However, given the limited availability of the vaccines and the delay in securing sufficient doses for the entire population, it may be months before the government reaches phase 2 of its rollout strategy, wherein vulnerable people will be vaccinated.
In his speech on 28 February 2021, President Cyril Ramaphosa indicated that phase 2 of the rollout is estimated to begin in late April or early May.
This raises some important questions regarding vulnerable workers: what are an employer’s obligations to vulnerable employees prior to phase 2 of the vaccine rollout, and do these obligations change once vulnerable employees have been, or are eligible to be, vaccinated?
Before and during the phase 2 rollout
In terms of the regulations issued under section 27(2) of the Disaster Management Act 2002, a vulnerable employee is one with a known or disclosed health issue, comorbidity or other health condition that may place the employee at a higher risk of complications or death if infected with Covid-19, or an employee over the age of 60.
In his address on 28 February 2021, Ramaphosa said that phase 2 will also include essential workers and persons living or working in institutional settings.
The regulations have consistently required employers to show due regard to the increased risks faced by vulnerable employees and to accommodate them where possible. The regulations require employers to take special measures to mitigate the risk of vulnerable employees being infected at work, or, if this is not possible, to equip vulnerable employees to work from home.
At least until vaccines are rolled out to vulnerable workers, employers should continue to take extra precautions where reasonably practicable to protect vulnerable workers. This may involve taking steps to limit the employee’s exposure to Covid-19, for example:
This list is not exhaustive and employers should carefully consider the individual needs and circumstances of their businesses and vulnerable employees.
Taking appropriate measures in respect of vulnerable employees will ensure that the employer is complying with its obligations under the Covid-19 regulations.
Employers should bear in mind that a failure to comply with these obligations may attract a penalty under the Occupational Health and Safety Act.
Post-phase 2 rollout
It is important to note that vaccination of vulnerable employees may not absolve employers of these additional obligations in respect of vulnerable workers.
The National Institute for Communicable Diseases (NICD) has advised that at present it is unclear whether the Covid-19 vaccines will provide long-term protection against the virus (i.e. protection from reinfection) and that more research is required in this regard.
Furthermore, it is unclear how the vaccine will impact the Covid-19 pandemic. Whether the pandemic will continue beyond the rollout of vaccines depends on various factors, including the effectiveness of the vaccines, how quickly they are approved, manufactured and delivered, and how many individuals are vaccinated.
This means that while the rollout of vaccines brings hope that the end of the Covid-19 pandemic is in sight, at present it is unclear what the effect of the vaccines will be.
In the meantime, employers are urged to continue complying with all directives and regulations, particularly in respect of vulnerable workers. Even if or when vulnerable workers are eventually vaccinated, employers should remember that it is uncertain whether the vaccine will protect vulnerable people in the long term.
Accordingly, in the absence of new scientific research on the topic, or any laws or regulations to the contrary, employers may need to continue taking extra precautions to protect vulnerable employees.
Even if the vaccines are proven to protect against Covid-19 in the long term, employers are reminded that they may encounter legal hurdles should they try to compel employees to be vaccinated, and should be careful not to unfairly discriminate or dismiss on the basis of an employee’s vaccination status. BM/DM
Dalene Moodley is a Candidate Legal Practitioner in the Employment Department of ENSafrica. This article was reviewed by Peter le Roux (Executive Consultant) and Lauren Salt (Executive) of ENSafrica’s Employment department.
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