Workplace mandatory vaccination policy must be based on risk assessment - CDH

4th February 2022

By: Schalk Burger

Creamer Media Senior Deputy Editor

     

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Organisations that implement a mandatory Covid-19 vaccination policy must do so on the basis of a risk assessment, and the risk assessment must consider the operational requirements of the workplace before employers can decide to implement a mandatory vaccination policy, law firm Cliffe Dekker Hofmeyr (CDH) employment law practice associate Kgodisho Phashe said during a briefing on labour laws to clients, partners and the media.

While these requirements were set out in the workplace vaccination directive issued by Employment and Labour Minister Thulas Nxesi in June 2021, the Commission for Conciliation, Mediation and Arbitration (CCMA) has taken a strong stance on the matter of Covid-19 workplace protocols, especially when the rules are deemed reasonable, whether instituted by the employer or national rules, such as mandatory mask-wearing, he noted.

Therefore, a mandatory vaccination policy may be reasonable, if the operational requirements and risk assessment indicate the need for employees to be vaccinated to improve workplace safety, he said.

However, employees must be made aware of policies and requirements, similar to Covid-19 protocols. Additionally, an organisation must make employees aware that the period of isolation - termed quarantine in South African Covid-19 rules - following contact with a person who tested positive or had flu-like symptoms and/or subsequently tested positive for Covid-19 has been reduced from ten days to seven days.

"The three predominant grounds for dismissal that were tested during the past year were mainly related to Covid-19, and include absenteeism, insubordination and breach of Covid-19 protocols," he added.

The CCMA, with its main objective to ensure fairness for employers and employees, has taken a strong stance with regard to Covid-19 rules, and mainly considered whether the rules instated to prevent the spread of the disease were reasonable and consistently applied, and whether employees were aware of the rules, said Phashe.

"For example, a petrol attendant was dismissed by the employer for failing to wear a mask during work. The CCMA upheld the dismissal as it found that the rule was reasonable, because the country is experiencing a pandemic and the CCMA cannot condone recklessness in the workplace," he illustrated.

"The main considerations for employers are that the rules be known, reasonable and they must notify employees."

HYBRID WORK RULES
During the past year, CDH has fielded questions on whether employees can deduct expenses for working from home. If an employee has a home or remote office that is fully equipped to fulfil all his or her work functions, and spends more than 50% of his or her working time in this office, then the person could be eligible for a deduction on their income tax, said CDH legal tax specialist Howmera Parak.

"This has nothing to do with the employer, although employers can educate employees about the potential benefits they can claim as part of their income tax returns. However, an employer should provide an employee with a letter confirming that he or she is working from home, as this is part of the documentation that the South African Revenue Service (Sars) needs to process the request for deductions," she said.

However, Sars is auditing many employees and they must ensure they meet the requirements, such as by ensuring their home office is regularly and exclusively used for work.

Further, people must be aware that, if they sell their homes and have claimed tax deductions for working from home, the office will not be subject to the capital gains tax exemption up to R2-million they would normally benefit from when selling their house, she added.

Meanwhile, there are many data protection risks that arise from hybrid working, including potentially lower physical security and technical data protection measures, says CDH technology, media and ​telecommunications lawyer Aphindile Govuza.

"The Protection of Personal Information Act (PoPI) says the employer must take reasonable, appropriate technical and organisational measures to prevent the loss, destruction and unauthorised access of data. This is based on the sensitivity and type of information an organisation processes and, therefore, the appropriate measures may differ," he said.

When a person works outside an organisation's ambit, there is a heightened risk to data protection, including unauthorised access.

In practice, some measures were implemented to ensure the security of the information processed by employees, including data encrypting systems installed on employee devices, using virtual private networks to restrict access to the network by device and secure remote conferencing and collaboration tools, as well as requesting that employees patch and update their devices and software timeously, he explained.

"However, the most critical part is training on what an employee can and cannot do with data. Also critical, and a requirement in terms of PoPI regulations, is that employers have an obligation to conduct regular training and information sessions on the provisions of PoPI and the obligations of employees.

"This is to ensure that they know what they can and cannot do once they have information, and employers must develop policies and ensure that employees know about them. The [information] regulator will want to see records of training and policies implemented," Govuza advised employers.

Edited by Chanel de Bruyn
Creamer Media Senior Deputy Editor Online

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