ACCOMMODATING EMPLOYEES WITH VACCINATION CONTRAINDICATIONS

[Ivan Israelstam]

ACCOMMODATING EMPLOYEES WITH VACCINATION CONTRAINDICATIONS
Item 12. (5) and (6) of the new Code of Practice: Managing Exposure To Covid In The Workplace, 2022 requires that, where an employee clinically proves that he has a medical contra-indication to the Covid vaccination, the employer “must accommodate the employee in a position that does not require the employee to be vaccinated.” The Code does not say that the employer must endeavour to seek a safe post for the employee but that it “must” do so.
Does this prescriptive requirement mean that, where an employer, despite every effort, is unable to find a safe position for the unvaccinated employee, it is not entitled to terminate the employee’s employment via an incapacity procedure?

[Ingrid Lewin]

In its current form Item 12.6 is obligatory and, as per the preamble (Item 2(4)) employers are only allowed to deviate from the “non-obligatory” provisions of the Code for good reason.

However, experienced labour lawyers are in agreement that an interpretation of Item 12.6 making “accommodation” compulsory cannot be sustained legally and that, provided an employer has fulfilled the requirements for a fair incapacity termination and can prove that it is incapable of accommodating the employee in another position, despite its best efforts to do so, the dismissal would be fair. Whether commissioners and judges will rule along these lines remains to be seen. Another tack may be for employers to go the operational requirements route arguing that, for economic reasons, it cannot accommodate the employee and enter into a section 189 consultation process. I have little doubt, though, that should Item 12.6 find its way to the Constitutional court, it will be found to be unconstitutional in that it impinges on the economic rights of the employer

[Michael Bagraim]

Thank you for your mail Monday 11 April 2022. Items 2(3) and 2(4) are interesting but if you look carefully it specifically says that “the non obligatory provisions of the Code may be justified in appropriate circumstances”. Unfortunately the Section 12(6) appears to be an obligatory clause as it uses the word “must”. I believe that this will be struck down by a court as soon as it is challenged.

The Code is not a guideline on obligatory clauses and not a guideline in that Section 2.3 says that the Code advances in interpretation and should be applied unless the interpretation is reversed by decision of the court. I suppose the word “should’ does give many employers an out in certain circumstances.

The word “must” has created enormous problems and, although employers won’t follow it, there will have to be a court case in due course.

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