38 minute read
Suspension for not vaccinating
Suspension
for not vaccinating
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Two recent CCMA arbitration awards have dealt with issues arising out of the implementation of mandatory vaccinations in the workplace.
Following hot on the heels of the Goldrush1 matter, the arbitrator in Gideon J Kok v Ndaka Security and Services (Case no: FSWK 2448-21) found that an employee who had been denied access to the workplace on account of refusing to get vaccinated against Covid-19 had been suspended and that the suspension was fair. The applicant (Kok) had referred an unfair labour practice dispute to the CCMA, claiming that he had been suspended from duty and that the suspension was unfair.
Kok was employed as a Safety Practitioner, stationed at the premises of the employer’s client. According to the employer, in terms of a Risk Assessment that complied with the Consolidated Directions issued by the Department of Employment and Labour2 , Kok had been identified as someone who was required to be vaccinated.
His duties entailed identifying security risks on site and required him to be “physically involved” with guards, the client and the public. He also shared an office with about 10 other employees and it was not possible for him to work in an isolated office, given the nature of his job. Kok had been given ample time to air his objections, and also given the option of submitting a weekly Covid-19 negative test result as an alternative to vaccination. Importantly, although it didn’t dispute the CCMA’s jurisdiction, the employer argued that Kok had not been suspended, merely instructed to stay at home or provide a weekly negative test result. He was still being paid his salary.
Kok argued that to compel him to be vaccinated would infringe his right to freedom and security of the person (s12 of the Constitution), and there was no law that compelled an employee to be vaccinated. Mandatory treatment was prohibited by the National Health Act, and although he agreed that in terms of the Consolidated Directions strong measures could be taken, this did not include barring him from the workplace; the employer could have resorted to alternative measures. He had previously contracted Covid-19 and had relied on his Christian faith and his body’s natural immunity to recover.
Kok confirmed that the employer had consulted with him on various occasions about his position, and that he had had the option of submitting weekly negative test results. He had made use of this option on some occasions but was no longer willing to do so as he had to pay for the tests.
Given the parties’ opposing views on whether Kok had been suspended or not, the arbitrator rightly first considered whether Kok’s claim accorded with the definition of a suspension in terms of s186(2)(b) of the LRA3. This would go to the issue of jurisdiction.
In City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others4 (Tshwane), the Labour Court reviewed an arbitration award finding that the employer had unfairly suspended the services of some employees. The employer argued that there had been no suspension, as the reason for the suspension did not accord with the definition in s186(2)(b) of the LRA, being neither precautionary pending disciplinary proceedings nor a punitive sanction, and it was settled case law that those were the only two types of suspension. As such, the Council had not had jurisdiction to entertain the dispute.
The court per Prinsloo J found no merit in that argument, holding that the case law confirming that suspension could be precautionary or punitive had all been decisions within the context of disciplinary action. There was however “nothing in the LRA that states that the definition is limited to the extent that any suspension that takes place outside the realm of disciplinary action is to fall outside the ambit of the LRA.”5 To accept otherwise would lead to an absurdity, in that an employer would be free to suspend an employee for a reason other than a precautionary suspension or punitive sanction, without protection for the employee. In order to give effect to the right to fair labour practices in s23 of the Constitution, the court had to endorse a less restrictive interpretation of ‘suspension’. Applying the logic of the Tshwane judgment, the arbitrator found that Kok had been suspended and the question therefore was whether the suspension was fair or not.
Footnotes 3 Section 186(2) of the Labour Relations Act 66 of 1995 provides that: ‘Unfair Labour Practice” means any unfair act or omission that arises between an employer and an employee involving (a) … (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; 4 Case no: JR795/18 (decided 15 October 2021)
The arbitrator could find no fault with the procedures followed by the employer. As in the Goldrush matter, it had conducted a risk assessment which complied with the guidelines and procedures set out in the Consolidated Directions, and made accommodations where it could. In Kok’s case, it had offered him an alternative to vaccination, that is to provide a weekly negative test report.
Unlike in Goldrush, the arbitrator in this case engaged extensively with Kok’s claim that in terms of s12(2)(b) of the Constitution6 he could not be forced to vaccinate. While noting that the CCMA could in general not determine constitutional issues, the arbitrator found that in order to decide whether the suspension was fair, it was necessary to consider the
factors set out in s36(1) of the Constitution7 that must be taken into account when deciding whether it would be justifiable to limit a right in the Bill of Rights. In doing so, the arbitrator had regard to judgments that dealt with the limitation of the rights in s12 of the Constitution. In Minister of Safety and Security and Another v Gaqa8, for example, an individual was forced to undergo surgery to remove a bullet lodged in his leg, despite having refused consent thereto. Similarly, in Minister of Health of the Province of the Western Cape v Goliath and Others9 the court ordered individuals who had been diagnosed with highly infectious drug-resistant tuberculosis to be admitted to hospital against their will, thus depriving them of their freedom. In accordance with the reasoning in these judgments, the arbitrator found that the public interest outweighed the right to bodily and psychological integrity in certain instances. In the present case, there were compelling reasons to limit the applicant’s right, notably because the vaccine had been shown to successfully limit severe illness and transmission and it was clear that there was only a very limited chance of adverse side effects. As such, there was a clear relation between the limitation and its purpose. Less restrictive measures such as face masks were already in place and it appeared that vaccination was “almost a last resort in curbing the evil of 2019”.
Footnotes 7 These are (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 8 [2002] ZAWCHC 9 9 2009 (2) SA 248 (C) Perhaps the most relevant finding made by the arbitrator though was that the aim of vaccination was not only to protect Kok but “to ensure a safe working environment for everyone and protect lives and livelihood.” This was not only a common law principle but was encompassed in the Occupational Health and Safety Act (OHSA)10, which amongst others imposes a duty on employers to take reasonably practical measures to provide and maintain a working environment that is safe and without risk to the health of its employees. As far as the arbitrator was concerned, the requirement to vaccinate was a “reasonably practical step” that every employer is “required and compelled to take”. Finally, the arbitrator noted that private security services are designated as an essential service in terms of the Disaster Management Act and for the economy to survive it was crucial for the economy that front-line or essential services were delivered with as little as possible interference and interruption. Linked to this was a clear commercial rationale for the employer’s decision, as it could not afford to have its operations affected by closures. To sum up, the arbitrator concluded that Kok had been suspended but was not a victim of any unfairness as far as his constitutional right was concerned, and that the employer was justified in requiring him to be vaccinated for the purpose of providing a safe working environment. It was also an important factor that the employer had followed due procedure and offered Kok the option of testing weekly as an alternative to vaccinating.
Two questions arise:
1Was the applicant suspended? No doubt conscious of the import of his finding, given the paucity of precedent thus far, the arbitrator was at pains to provide comprehensive reasons and analysis for his decision, including substantiating references. But is the finding of a suspension correct? Prinsloo J’s extension of the ambit of suspension as defined in the LRA makes logical and constitutional sense, but having been given the option to be tested weekly, Kok had an election whether he could report for duty or
not, which is distinguishable from a “true” suspension, where an employee has no such election. In this regard, the court’s finding in Tshwane is relevant. In that matter the employer suspended the employees’ services because they refused to sign a new contract with different terms and conditions, after their previous fixed-term contract had expired and they had continued to work. The court found it questionable whether that could be regarded as a fair reason for suspension but did not question that it was indeed a suspension. In both these matters, the employees had been given a choice.
What could the employer’s action be termed other than a suspension? Did Kok incapacitate himself from working? Would the “no work no pay” principle be applicable? In the Goldrush matter, the arbitrator reasoned that “incapacity” implies an inability to do the job for which an employee is engaged, and agreed with the company that by refusing to be vaccinated, the applicant had made herself incapacitated. This had made her dismissal fair. Perhaps had it been given time, the employer would have followed the same route with Kok (although as it happens it appears that he was later “properly” suspended on the grounds of some or other misconduct). In general, that would seem more appropriate than suspension, provided that an employee has indicated that he or she never intends to get vaccinated. In this instance, however, Kok had referred the unfair labour practice dispute only two days after he was denied entrance to the premises. 2Is the constitutional right to security in and control over the body applicable? In both Goldrush and the present matter, the applicants relied on their right to security in and control over their body in s12(2)(b) of the Constitution. In his analysis, the arbitrator accepted that the employer had limited Kok’s constitutional right to bodily integrity, albeit he found there were compelling reasons for doing so. It is however doubtful whether this right is applicable in the circumstances. The employees were not being physically forced against their will to be vaccinated; in other words, they had an election whether to vaccinate or not, albeit certain consequences flowed from their decision not to. As such, the factors listed in s36(1) of the Constitution that must be taken into account in order to determine whether a constitutional right may be limited do not come into play in this scenario. Section 36(1) further provides that a right may be limited only in terms of law of general application, or in other words, national legislation. At present there is no such law mandating compulsory vaccination.11 Notwithstanding, it is suggested that the process of deciding the fairness or otherwise of any sanction imposed on an employee by reason of his or her refusal to be vaccinated involves a similar process as that outlined in s36(1). As Brand J (as he then was) put it in Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v The Honourable Mr Justice King N.O. & Others [2000] 4 All SA 128 (C):
“The application of section 36 involves a process of the weighing up of competing values and ultimately an assessment based on proportionality which calls for the balancing of different interests. Inherent in this process of weighing up is that it can only be done on a case-by-case basis with reference to the facts and circumstances of the particular case.”
The bottom line will, as ever, be whether in all the circumstances of a particular case, the employer’s decision was fair.
Anne Erwin
Mandatory vaccination
What has the new Code of Practice changed?
On 15 March 2022, the Department of Employment and Labour issued a Code of Practice on managing exposure to COVID-19 in the workplace (the “New Code”).
The New Code is to take effect on the date that the Declaration of a National State of Disaster lapses. On the same date, the Declaration of a National State of Disaster was been extended to 15 April 2022.
Practically, this means is that the New Code will only come into effect once the existing disaster management framework has fallen away. Until that time, it seems that the Consolidated Direction on Health and Safety in Certain Workplaces (which currently deals with mandatory vaccination) will still be in force.
Given that the Declaration of a National State of Disaster was just extended by a month, this may not have been the intention of the drafters at the time, particularly in circumstances where portions of the Consolidated Direction conflict with the new Adjusted Alert Level 1 regulations. But insofar as the topic of mandatory vaccination is concerned, the New Code does provide some indication (and much needed clarity) on what the intention of the drafters may have been when drafting the Consolidated Direction.
What has stayed the same?
As with the Consolidated Direction, an employer is still required to do the following in preparation of a mandatory vaccination policy:
- Undertake a risk assessment, taking into account the relevant occupational health and safety legislation; - Based on the risk assessment, identify any measures to be implemented in respect of the vaccination of its employees (and identify the dates by when employees must be fully vaccinated, which includes any booster doses); - Consult on the risk assessment and policy with any representative trade union and any health and safety committee, or health and safety/employee representative, as the case may be; and - Make the risk assessment available for inspection by the above representatives and/or an inspector.
The employer is still required to educate employees on the vaccines. In this regard, the employer is required to counsel employees on the nature of vaccines used in the country, the benefits associated with these vaccines, the contra-indications to the vaccine and the nature and risk of any serious side effects.
And finally, an employee can still refuse to be vaccinated and there is a process for an employer to counsel the employee and refer an employee for medical evaluation, if the refusal relates to medical contraindications to the vaccine.
What has changed?
Every employer must now take measures to determine the vaccination status of their employees. In giving effect to the New Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate. This has caused much anxiety for employers who have been uncertain if they could ask for this information. The confirmation that an employer has an obligation to take measures to determine employees’ vaccination statuses and thus, impliedly the employee has an obligation to disclose this information is a welcome inclusion in the New Code, particularly where employees who are reticent to vaccinate often refuse to disclose their vaccination status and claim that it is an unlawful request (even where it is not). Insofar as a refusal or failure to be vaccinated is concerned, there are three key changes:
There is no longer a statement of the grounds upon which an employee can refuse to be vaccinated;
There is an obligation to take steps to reasonably accommodate employees who refuse vaccination (on any grounds); and
If an employee produces a medical certificate attesting that an employee has contraindications, and the employer accepts the medical certificate, or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications, the employer must accommodate the employee in a position that does not require the employee to be vaccinated.
In the New Code, there is no reference, at all, to constitutional grounds as the basis for refusal and it appears that the New Code recognises that an employee can refuse vaccination on any ground. The wording of Clause 12(4) provides, without qualification, that:
“If an employee refuses to be vaccinated, the employer must-
(a) counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official; and
(b) take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.”
This appears to suggest that, in all circumstances, an employer must look to accommodate an employee who refuses to be vaccinated. The problem with this is that it gives free rein to employees to object on a multiplicity of unjustified grounds.
As an example, an employee may seek to refuse to vaccinate solely on the basis that they want to continue working from home.
If an employee can work remotely and there is an obligation to take steps to reasonably accommodate the employee, an employer may find itself in the position of having to reasonably accommodate an employee who, in essence, fails to follow a lawful and reasonable instruction to return to work (and vaccinate).
In addition, the New Code also suggests that an employer must seek to accommodate employees who refuse or neglect to be vaccinated in accordance with the instruction to do so. The New Code states that one of its purposes is to provide guidance to employers seeking to accommodate employees who refuse or fail to vaccinate against the virus. This seems somewhat incongruent with the ordinary principles of employment law, but until there is further clarity on this issue employers seeking to discipline employees for their refusal or failure to vaccinate (based on unjustified reasons) employers should, as a measure of mitigation, explore whether there is any way to reasonably accommodate the employee prior to dismissing them. In the flurry of cases that we have seen referred to the Commission for Conciliation, Mediation and Arbitration, an employer might very well be advised to employ these measures prior to the enactment of the New Code.
Lauren Salt, Employment | Executive lsalt@ENSafrica.com
New case deals with a South African worker who was fired for ‘complaining too much’ what you should know
South Africa’s Commission for Conciliation,
Mediation and Arbitration (CCMA) recently dealt with the dismissal of an employee who continuously raised grievances at work, notes Jacques van Wyk, director at Werksmans Attorneys, who highlights the commission’s findings.
The case centred on the alleged unfair dismissal for reasons of ‘incompatibility’.
The employee lodged ‘endless complaints’ and continuously displayed aggression to his immediate superiors. The employee claimed that his complaints arose from disagreement with his poor work performance rating by the employer.
“The employee had indicated that he had financial problems and familial problems which affected his mental focus and concentration at work due to stress. He was assisted through the process of the Independent Counselling and Advisory Services (ICAS) and it was established that he was fit to perform his work,” said van Wyk.
“The employer assisted the employee who later continuously rejected advice and persistently raised issues that had previously been dealt with. The CCMA commissioner noted that the evidence showed that the employer went out of their way to assist the applicant. Despite the efforts of the employer, poor work performance persisted which had resulted in the low-performance rating afforded to the employee.” Thereafter, the commissioner noted that the employee had continued to file grievances after a successful conciliation meeting in which he had agreed to “bury old wounds”. Ultimately, the relationship between the employee, his co-workers and superiors grew toxic. The employee continued to fail to follow instructions and displayed aggression.
“Incompatibility had been incorporated in the employer’s disciplinary policy as a form of misconduct,” said van Wyk.
“The employee denied that he was aware of the provisions in the employer’s disciplinary code making incompatibility a disciplinary offence. This was rebutted by evidence provided by the employer which had been affirmed by the commissioner”.
CCMA’s findings
The CCMA commissioner relied on the case of Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC), in which the Labour Court highlighted important characteristics in explaining the nature of workplace incompatibility. It said that:
“…incompatibility refers to the employee’s inability or failure to maintain cordial and harmonious relationships with his peers, incompatibility is a form of incapacity and incompatibility is an “amorphous nebulous concept” based on subjective value judgments”. The commissioner found that the employee had disrupted the harmony of the workplace, warranting dismissal. He had been counselled but had refused to co-operate with remedial measures or to sign minutes.
The termination of his employment was the last resort since the employer had invested a lot of time to consider his grievances which were unfounded and baseless.
“The notion of incompatibility is nebulous but, when proven, can serve as a valid basis for dismissal. An example of this is when an employee lodges continuous grievances which are unfounded or have been resolved on a previous occasion which disrupt the harmony in the workplace,” said van Wyk.
Post-termination confidentiality restrictions
Are they worth anything?
The value of post-termination confidentiality and non-disclosure restrictions on employees is often questioned, with employers (and employees) suspicious of their value and enforceability. Earlier this month, the Labour Appeal Court (“LAC”), in Arthur Owen Carolin v World Power Products (Pty) Ltd, handed down an interesting judgment confirming precisely what value provisions such as these can hold for employers.
Background
The employee commenced employment with World Power Products in 1990. In June 2016, an extremely strained relationship had developed between the employee and the managing director of the company. Due to this strained relationship, the company approached the employee with a view to bringing the employment relationship to an end amicably, through the conclusion of a termination agreement.
A termination agreement was then concluded. Of particular importance was clause 2.3 of the termination agreement which stated: “The Employee undertakes not to disclose information, of any nature regarding the Company or this agreement, to any person or organisation. Such information shall include methods, processes, computer software, documentation, client lists, programmes, trade secrets, technical information, intellectual property, drawings, financial information, or any other information which could be damaging to the Company’s operations or which could benefit other parties to the detriment of the Company.” (our emphasis) The agreement further provided that before 26 June 2016, the company would pay the employee ZAR400 000 in full and final settlement of any disputes between the parties.
The employee left the company on 10 June 2016 and duly handed in his company cell phone and laptop. On 20 June 2016, the employee commenced employment at Remcor (Pty) Ltd, a competitor of the company.
On 22 June 2016, while employed by Remcor, the employee sent an email from his new Remcor email address to a number of people in which he wrote; “please see my new contact details below”. Underneath this message appeared “Arthur Carolin Remkor Technologies”. The list of addressees constituted a range of clients of his former employer, World Power Products.
News of this travelled fast and on 24 June 2016, World Power Products’ attorney addressed a letter to the employee, alleging that he had repudiated the termination agreement by sending this email to his former employer’s customers and that this conduct entitled World Power Products to withhold payment of the ZAR400 000 as per the termination agreement.
On 28 June 2016, the employee’s attorney wrote back, denying that the employee had repudiated the termination agreement, and included an undertaking to delete and destroy all World Power Products’ property that the employee still had in his possession, including business cards that he had accumulated while in the employ of World Power Products.
This did not satisfy World Power Products who then sought relief in the Labour Court.
Labour Court
The Labour Court found that, contrary to the clear terms of the termination agreement, the employee had “disclosed information emanating from the business cards amassed during his employment, that information is clearly customer connections. Customer lists have been held by our Courts to be worthy of protection and need not necessarily be embodied in the document to be construed as confidential information.”
The Labour Court held that the employee had repudiated the termination agreement which entitled the employer to accept this decision and regard the agreement as having been cancelled, which meant that World Power Products did not have to pay the employee the ZAR400 000 separation payment amount.
Labour Appeal Court
On appeal to the Labour Appeal Court, the employee argued that the Labour Court should have concluded that: 1. the employee had sent the email in question to addresses he had taken from business cards, as opposed to customer lists; 2. this source of information did not fall within the scope of confidential information and thus there had been no breach of clause 2.3 of the termination agreement; and 3. the Labour Court had erred in concluding that the employee had demonstrated an intention to repudiate the agreement, particularly because the agreement did not contain a lex commissoria clause which would have allowed World Power
Products to cancel the agreement, in the event that the employee breached clause 2.3 of the termination agreement.
The Labour Appeal Court did not accept the employee’s argument and found in favour of World Power Products, holding that: 1. the wording of the termination agreement was clear: it embraced the prohibition of the disclosure of information, including client lists, and there was no suggestion from the wording that a disclosure had to be regarded as confidential information; and 2. the fact that the employee generated an email which was captured on the system of his new employer, and which contained the email contacts of a range of the employee’s former employer’s customers manifestly constituted a disclosure of the former employer’s client lists. The clear consequence was that a list of customers of World Power
Products was now on Remcor’s computer system. The Labour Appeal Court also reiterated the law regarding repudiation, confirming that a repudiation occurs where one party to a contract, without lawful grounds, indicates to the other party in words or by conduct a deliberate and unequivocal intention no longer to be bound by the contract. It was clear in this case that the conduct of the employee fell within the scope of this dictum: by his conduct, the employee had exhibited a clear and unequivocal intention not to be bound by the terms of the termination agreement. The other party to the agreement, World Power Products was entitled to accept this repudiation, which it did, which meant that it did not have to abide by the further terms of the agreement which required it to pay the separation payment to the employee.
The Labour Appeal Court upheld the decision of the Labour Court (dismissing the appeal, with costs), which meant that World Power Products was not required to pay the employee the ZAR400 000 separation payment as provided for in the termination
agreement.
Conclusion
This case highlights the importance of and value to employers of post-termination confidentiality and nondisclosure obligations.
It also demonstrates that disclosure of a “client list” (something which is often prohibited in termination agreements and other similar agreements, like those in restraint of trade) does not necessarily have to take the form of disclosure of a physical list or “phone book” of client contact details. In this case, the list of email addresses generated when the employee sent out an email to various of his former employer’s customers was sufficient to constitute a “client list” which was now in the hands of his new employer.
This judgment should provide comfort to employers as it represents a tangible example of the actual value post-termination restrictions such as these can have for their businesses. On the other hand, the judgment should sound a clear warning to employees seeking to bypass legitimate post-termination obligations owed to former employers that doing so may have considerable negative consequences for them.
Henry Rossouw, Employment | Executive Curtis Nhliziyo, Employment | Associate ENSafrica.com
South Africa’s new privacy rules
leave businesses with Covid vaccine headache
By Preeta Bhagattjee (director), Aphindile Govuza (senior associate) and Reece Westcott (candidate associate) at Cliffe Dekker Hofmeyr.
While an increasing number of South African businesses are moving to introduce Covid vaccine policies, questions have been raised as to whether a business can, in terms of the Protection of Personal Information Act (POPIA), request an employee, customer, contractor or third-party to disclose their vaccination status.
“Disclosing one’s vaccination status entails the ‘processing’ of ‘special personal information’ under POPIA, says legal firm Cliffe Dekker Hofmeyr.
Specifically, such information constitutes health data under section 26 of POPIA, and is afforded additional protection given its sensitive and confidential nature, it said.
POPIA provides for very specific legal justifications or lawful bases that allow for the processing of health data. These are set out in detail in sections 27 and 32. Section 27(1) deals
with general authorisation concerning special personal information and specifically allows a responsible party to process such data if:
Processing is carried out with the consent of a data subject;
Processing is necessary for the establishment, exercise or defence of a right or obligation in law; or
Information has deliberately been made public by the data subject.
As such, is there a specific right or obligation in law that justifies the processing of vaccination-related health data?
“At the time of writing this article, the answer is no. A good example to illustrate this point stems from the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces which obliges an employer to take measures to screen workers/employees when they report for work in order to determine whether it is safe to allow them to be present at the workplace,” Cliffe Dekker Hofmeyr.
“The corresponding guidelines for such screening practices are overtly silent on the disclosure of a person’s vaccination status. Therefore, in the absence of a clear and express obligation in law that specifically mandates the disclosure of a data subject’s vaccination status, responsible parties can only rely on the remaining justifications under section 27(1) of POPIA to process them,” it said. Authorisations
Further, section 32(1) of POPIA deals with the specific authorisations concerning the processing of health data, the firm said.
Processing of such data is allowed if it is carried out by: - Medical professionals, healthcare institutions and facilities, and social services, if such processing is necessary for the proper treatment and care of the data subject, or for the administration of the institution or professional practice concerned; - Insurance companies, medical schemes, medical scheme administrators and managed healthcare organisations, if such processing is necessary for the activities specified under section 32(1)(b); - Schools, if such processing is necessary to provide special support for pupils or to make special arrangements in connection with their health; - Any public or private body managing the care of a child if such processing is necessary for the performance of their lawful duties; - Any public body, if such processing is necessary in connection with the implementation of prison sentences or detention measures; or - Administrative bodies, pension funds, employers or institutions working for them, if such processing is necessary for the processing activities specified under section 32(1)(f).
“Until legislators specifically put forward an express right to access or process vaccinationrelated health data in law, we are of the view that businesses that request information regarding the vaccination status of their employees, guests to their premises, customers or third-party contractors would require an express (and POPIA) compliant consent from the data subject to whom the special personal information relates,” Cliffe Dekker Hofmeyr said.
By Preeta Bhagattjee (director), Aphindile Govuza (senior associate) and Reece Westcott (candidate associate) at Cliffe Dekker Hofmeyr.
55 Contents Page A SEIFSA Industrial Relations and Skills Development
seminar featuring Johnny Goldberg
Join Louwresse Specht, SEIFSA Industrial Relations Executive, Jan Munnik, founder and Managing Director of EES-SIYAKHA, and Johnny Goldberg, Joint CEO of Global Business Solutions and well known Business Commentator, Labour Law Specialist, and Adviser to BUSA, NEDLAC, and Senior Industrialist
across industries on a range of pressing industrial relations, human capital and skills development, labour and employment law themes and topics dominating the world of work landscape.
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The collective bargaining landscape & status of the Main Agreement
Labour and Employment Law Update 1. Refusing to vaccinate 2. Sexual harassment 3. Sick leave
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Jan Munnik Louwresse Spectch
Johnny Goldberg
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WHAT TO EXPECT
When you’re expecting covid-19 restrictions to be lifted
Scientists weigh in on what no longer works, what never worked, and what is still worth doing
By Tanya Farber, Senior science reporter
Non-pharmaceutical interventions (NPIs) have left a footprint on our daily lives that will stand us in good stead. But if you think they’re still preventing the spread of Covid, think again.
Taking temperatures at venue doors is described as “a complete waste of time, and always has been”, and sanitising may prevent other diseases but isn’t doing much against Covid. Masks still have their place — when worn correctly — and social distancing hasn’t been that possible anyway in SA.
In sum, “with Covid-19 transmission at a low point now, NPIs need no longer be mandated”, Sheetal Silal, the director of the Modelling and Simulation Hub Africa at the University of Cape Town, told the Sunday Times this week.
“Most of these NPIs had some value in reducing Covid transmission when implemented correctly,” she said, though this was often not the case with temperature readings.
Because airborne transmission was far greater than surface transmission, the effectiveness of sanitising for controlling the virus that causes Covid was “reduced”, but it has “benefits for other disease prevention — especially in the absence of running water”.
IN NUMBERS
• 20%: The week-on-week reduction in new confirmed cases • 2,600: Covid patients in hospital
Silal said: “Reasonable measures at this stage would include public communication that encourages good, voluntary hygiene practices such as handwashing for all, and wearing masks and socially distancing for those with symptoms of any airborne infectious disease, including ‘flu and colds caused by other coronaviruses.”
Health minister Joe Phaahla hinted on Friday that the requirement to wear masks outdoors will be dropped when the national coronavirus command council meets next week, along with the requirement that travellers entering SA must present a negative test result.
He said the health department was ready with its plans for regulating Covid after the state of disaster is lifted, and Stellenbosch University virologist Wolfgang Preiser said he hopes the rules will still require masks indoors and in crowded outdoor settings. For example, being maskless at an open-air theatre is fine if you’re sitting on the lawn, but when you use the bathrooms or fetch food, a mask should be worn.
Preiser said sanitising has only a “minor role” in preventing the spread of Covid, but it has led to “an improved level of general hygiene — for example in the case of regular wiping of trolley handles, which is likely beneficial for other reasons”.
Hand-spraying, however, is “probably quite useless”, and the least efficient measure of all is taking temperatures. Its only possible benefit is to “increase awareness about Covid rather than screening out infectious people”.
Social distancing might be useful “in critical areas like public transport” but it is already not implemented nor enforced, said Preiser, adding that he “would not want to be in a very crowded indoor space even now” but there is a negative economic implication if limitations on occupancy continue. According to Gesine Meyer-Rath, associate professor of health economics at Boston and Wits universities, it is important to have a mechanism in place to reintroduce NPIs at short notice. “Since none of us know what future SARS CoV-2 variants might look like, and the virus has surprised us a number of times, it would be important to now work on a mechanism to switch restrictions back on in case there is a signal for a new variant causing sufficient levels of severe disease,” she said.
“Both the signal and the level of disease severity that would define it would need to be agreed on by the government.”
Shabir Madhi, dean of health at Wits University and a professor of vaccinology, said NPIs were “particularly useful when we were trying to limit the rate of infections in the context of very limited immunity against the severe sequelae of Covid-19, including death”.
But many of them were conceptualised and advocated “before we had a full understanding of the major mechanism of transmission of the virus”.
We now know it is airborne and is not primarily spread through direct droplets from person to person or contaminated surfaces.
“Consequently, whereas some of the NPIs could be useful to prevent other diseases, they have little value in preventing Covid,” he said.
Implementation and adherence had been poor anyway, as shown by the fact that about 85% of the population has been infected, so it was “highly questionable” whether regulations on NPIs achieved much.
85%
of the population has been infected
Sanitising should become a “permanent fixture” because it protects against enteric diseases — those related to the intestines. Taking temperatures at venue doors “is a complete waste of time” and always has been, while “social distancing has very limited use unless in the case of a symptomatic infected person”.
As for limiting capacity indoors, Madhi said, “there is a possible case to be made” when transmission is high, but it should not be routine.
“We have extensive population protection against infection [from past infection and vaccines], and it would be foolish to still believe that we are trying to prevent infections,” said Madhi.
Measures are needed to protect high-risk groups when there is heightened intensity of virus transmission, and these include “ensuring they and others are adequately vaccinated”.
— Additional reporting by Amanda Khoza
Could employers who don’t offer remote working lose valuable
It appears from recently released research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working, writes employment lawyer Jacqui Reed.
The media reported on two recent studies conducted in the United States of America, which found that the significant majority of white collar employees would prefer to work from a location of their choice, rather than their employer’s offices.
A poll conducted by management consultancy, Advanced Workplace Associates, found that only 3% of employees wish to return to the office on a full-time basis and 86% would like to work from home at least two days per week.
Research conducted by Prithwiraj Choudhury, a Harvard Business School professor, who is an expert on remote work, shows that a hybrid workforce is more productive, more loyal and less likely to leave. With companies from Twitter to PwC now giving employees the option to work virtually forever, Choudhury said businesses that don’t adapt will risk incurring higher employee attrition.
In response to what the world of work will look like in 10 years, he said:
We will probably in 10 years stop calling this “remote work”. We’ll just call it work, and work is something you do, not where you go or where you live. My prediction is the process will unfold in every industry and every country. There will be a few leading companies that will adopt this and attract talent, and there will be laggards digging their heads in the sand and losing talent.
His model provides for 25% of employees’ time being co-located with the team, mentoring junior people, going out for team dinners and making memories.
Importantly, these studies only apply to white collar employees and are not applicable in respect of those employees who perform physical tasks.
What to do to remain competitive
It appears from this research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working. Many employers had, in fact, embraced this concept prior to the pandemic. This was evident from the multiple requests we received from clients across various sectors to review their agile/flexible working policies and procedures to ensure compliance with their current contracts of employment.
While it was mandatory for all employees, who were able to do so, to work from home at the commencement of the pandemic, the South African government has slowly eased restrictions over the last two years and all employees are now permitted to attend at the workplace. Importantly, those employees who test positive for Covid-19, but are asymptomatic are not required to isolate. This raises questions regarding the employer’s obligations to ensure a safe and healthy working environment for its employees. Employers are permitted to impose stricter guidelines than those which the South African government requires, particularly in circumstances where they will be in breach of their obligations in terms of the Occupational Health and Safety Act, if they permit Covid-19 positive employees to attend the workplace and spread the virus to those who may form part of a vulnerable group.
Circumstances have changed
In reaching a decision as to whether it would be appropriate to follow with South African government’s amendment to the regulations and permit Covid-19 positive employees, who are asymptomatic, to attend the workplace, it would be prudent for an employer to not only consult with its employees on the issue, but to also review its risk assessment and plan. This is to determine whether circumstances have changed sufficiently from a scientific perspective such that the employer’s decision constitutes compliance with its health and safety obligations to its employees as well as employee’s obligations in this regard to each other.
When determining whether to permit employees to spend the significant majority of their time (75% according to the study above) working from home or some other location, other than the workplace, the employer will need to consider a number of factors, including: - how the initially mandatory remote working requirement imposed by most governments across the
world impacted upon productivity and the employee’s mental and physical well-being; - whether the nature of the business is such that inperson mentoring, training, guidance and assistance of junior employees (particularly those in apprenticeship or internship roles) is necessary or not;
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whether requiring employees to work from the office will negatively impact upon them from a financial and or mental and physical health perspective and/or result in direct or indirect discrimination of employees based on gender and race. (Several studies have suggested that a return to work with the absence of any flexibility has a negative impact on working mothers); - whether employees are more productive, efficient and content working remotely or in the office; and - whether the employer runs the risk of failing to attract talent (particularly from other jurisdictions) because it does not implement a flexible/agile working policy of some kind. Of course, the nature of the employer’s business and whether employees in other jurisdictions would be in a position to perform work for a South
African-based company are relevant considerations. An example of this may be a South African law firm that provides advice to clients based in South Africa, which would require only South African qualified lawyers to perform the work. Of course, the hierarchical nature of a law firm is such that it would also be necessary to consider the impact, if any, on trainees who are trained by senior lawyers and whether this training is effective in the remote work setting.
Importantly, and this has been the case throughout the various iterations relating to employer’s obligations during the pandemic, employers must consult with employees and all other relevant stakeholders, such as trade unions and employee representatives, prior to making a decision in relation to an employee’s workplace.
- Jacqui Reed is an employment lawyer for international law firm, Herbert Smith Freehills.
