Law firm unpacks issues around remote working, mandatory vaccination

14th January 2022 By: Marleny Arnoldi - Creamer Media Online Writer

As South African companies have started to experience normalised operations after the worst of Covid-19 and getting back to work after the festive season, questions have arisen over hybrid work models and mandatory vaccine policies.

In response to these topics, law firm Cliffe Dekker Hofmeyr (CDH) has unpacked some of the options and legalities.

Addressing the question of what flexible working models an employer can introduce in 2022, the firm says online work is a fast-growing trend and the digital era is driving new forms of employment through various online platforms.

Remote and hybrid working arrangements allow employees to work from home and attend the traditional workplace intermittently, particularly making room for atypical employment opportunities – temporary placements, fixed-term contracts and variable hour contracts.

These types of arrangements afford both employers and employees more flexibility and can attract highly skilled employees who favour this flexibility. It also allows employers access to a greater pool of skills and contained labour costs.

However, some of the negative consequences to atypical employment include a lack of job security and potential for excessive use of atypical forms of employment, which, in turn, impacts on workplace productivity and growth.

If employees are concerned about productivity and performance of employees working from home, CDH suggests that they ensure productivity through daily collaboration sessions, clearly defined deliverables, the introduction of efficient technology and productivity tools and assisting employees with developing strategies to effectively work from home.

CONSENT TO CHANGES

Addressing the issue of whether employee consent is required for a company to move to a hybrid or remote working model, CDH says employers should consider whether their employees’ place of work is determined through workplace practice, or whether it is incorporated as terms and conditions of employment contained in contracts.

If it is the latter, employee consent is needed to change to a hybrid model.

With regard to what happens when employees refuse to return to an office and what their rights are in this regard, the law firm explains that employers that have conducted a risk assessment of the workplace and implemented appropriate measures to ensure the health and safety of employees – such as physical distancing, sanitising,  vaccination policies and the wearing of personal protective equipment – are entitled to call on employees to return to the office.

The contract of employment may stipulate an employee’s place of work. If an employee unreasonably refuses to return to the stipulated place of work, then the employee may be in breach of the contract of employment and the employer may institute disciplinary action against the employee.

An employee who fails to adhere to a reasonable and lawful instruction from an employer to return to the contractually agreed workplace may be guilty of insubordination, which is a form of misconduct and may result in dismissal.

However, employees have the right to refuse to return to the workplace if they have a legitimate and objective reason to believe that the workplace poses a threat to their health and safety.

Employers should assess the reasonableness of an employee’s concern and eliminate the risk, if any. Once the health and safety threat has been remedied, a continued refusal may constitute insubordination.  

MANDATORY VACCINATION

CDH lists the first steps that employers need to implement towards a mandatory vaccination policy as being to identify the employees who fall within the “must be vaccinated” category and inform them of the measures that will be implemented with regard to the mandatory vaccination policy.

Next, the employer must provide electronic support to assist employees to register on government’s registration portal for Covid-19 vaccination, and allow them paid time off to be vaccinated, provided that they show proof of vaccination.

Employers must also allow employees to submit objections or applications for exemptions to vaccination, based on Constitutional, religious or medical grounds.

Employers should also provide employees with information on the nature and benefits of Covid-19 vaccines, as well as its possible risks and side effects, such as allergic reactions.