Workplace vaccinations - a policy framework

We have been asked to provide an example of a workplace vaccination policy document, a copy of which we include here. 

The contents of this precedent should not be regarded or used as an appropriate document for every workplace, and it is designed simply as a discussion document, intended to stimulate conversation and to start employers along their own journey of discussing, considering and implementing their own policy, appropriate for their specific industry, operational requirements, workforce and their understanding of the workplace vaccination debate.

Seemingly insignificant factors may lead to very different requirements, policy content and outcomes, and employers are advised to approach this process with sufficient attention and focus, and to approach a sufficiently skilled and experienced advisor to draft a tailor-made policy suitable to that specific workplace. Employers must specifically adhere to any industry-related regulations and conventions, sectoral determinations, union agreements and other factors that should be included. Sufficient notice should be given to involved unions, and employees should be allowed wide leeway in their chosen and preferred representation during the process.

The over-arching goal should be for the policy document and process to be a dynamic, living tool that provides certainty, clarity and consistency while at the same time is also dynamic and robust enough to move with developments in the medical/scientific, legal and other related fields. 

The enclosed example is one where the employer aims at arriving at a fully vaccinated workforce, but this is of course completely open to amendment based on the employer's own philosophies, operational requirements, the consultative process, specific industry, available alternatives and so on. 

An appropriately crafted and implemented policy and process can reduce or prevent much of the anticipated conflict and risks currently forming part of the national debate surrounding this crucial topic. 

  EXAMPLE POLICY FRAMEWORK -

(This is a draft framework document for discussion purposes only, and it should not be used indiscriminately and without proper advice by employers) 

THE ABC COMPANY VACCINATION POLICY AND CONSENT AGREEMENT  This is a combined policy document and memorandum of agreement between the employer 

THE ABC COMPANY (hereinafter referred to as “the employer”) 

and 

………………………………………………………. 

(hereinafter referred to as “the employee”) 

• 1. BACKGROUND AND INTRODUCTION TO THE POLICY

 It is the employer’s considered view that it has a legal and moral duty towards its employees, clients, , service providers and general members of the attending public to be as Covid-19 compliant as possible. This is seen as an application of the wider legal responsibility vested in the employer of having to provide and maintain a safe and compliant working environment. The employer furthermore holds the view, after extensive consultation with appropriate experts and staff members, as well as a consideration of the medical and scientific general consensus, that in the interests of all the above-mentioned parties and in execution of its legal obligations, the employer will implement and enforce a vaccination policy as set out herein, or as may be published from time to time as relevant new developments may require. 

• 2. CONTENT OF POLICY

 The policy, known as the ABC Co Vaccination Policy, will entail the vaccination of all employees on the terms, and following the processes as determined herein. The term “vaccination” will simply mean the Covid-19 vaccination process as is determined and implemented by the medical profession in South Africa from time to time. The term “vaccination” will include an understanding of two such vaccination events unless otherwise prescribed by the employer’s medical advisors or generally accepted medical practice. 

• 3. IMPLEMENTATION DATE

 This policy is effective immediately as from the 1^st October 2021. 

• 4. IMPLEMENTATION PROCESS

 Subject to suitable and consistent variations where prudent and reasonable, the employer will follow the following process in implementing the ABC Co Vaccination Policy – 

• 4.1 All employees will indicate their vaccination status, in other words whether already vaccinated, not yet vaccinated but willing to do so, or vaccination hesitant. Employees indicating that they have already been fully vaccinated will be required to prove such status by way of acceptable official documentation. Unvaccinated employees will be assisted and guided where necessary and reasonable so as to ensure vaccination, including proof thereof, as stated above. 
• 4.2 Vaccination hesitant employees will attend private and confidential meetings with management in order to further discuss the policy and any questions or concerns arising therefrom,
• 4.3 Employees will be afforded the opportunity to make private submissions to the employer as to valid and medically approved exclusions and exemptions from such policy, which will be considered by the employer,
• 4.4 Any information sessions or counselling that the employee(s) may wish to reasonably make a part of any such individual consultation process will be implemented, at the employer’s expense,
• 4.5 As part of such process a reasonable and operationally feasible time limit for such vaccination to be discussed and implemented by the employer, subject where relevant to supply and vaccination opportunities,
• 4.6 Any costs reasonably necessary to implement such vaccinations will be for the employer’s account,
• 4.7 Time reasonably and necessarily spent by the employee during working hours in complying with such vaccination policy will be regarded as paid time at work,
•  4.8 All such process and discussions will be regarded as fully confidential by the employer, unless otherwise requested by the employee(s) involved or by operation of law.
• 4.9 It is understood that the employer will have, by agreement, the right to follow up on the employee’s progress with the vaccination process, and that the employee will, when so requested, be obliged to prove to the employer, in a manner acceptable to the employer, that the employee has in fact so been vaccinated.
• 5. CONSEQUENCES OF NON-COMPLIANCE WITH VACCINATION POLICY
• 5.1 Given the employer’s view and legal obligations as stated above, the employer impresses upon all employees the urgency and necessity of this vaccination policy, and full compliance by employees with such policy.
• 5.2 In referring to the policy as a necessary policy the employer understands of course that an employee may nevertheless insist on not complying with such policy, or any part of the procedures adopted and implemented.
• 5.3 The employer records its dedication to the responsible and continually informed implementation of this policy, including the implementation of medical and scientific best practices as these may develop.
• 5.4 The employer however hereby makes its position on continued non-compliance with such policy very clear, given the urgency and importance of the vaccination of all employees. The employer emphasizes that it is simply insisting on vaccination, as part of an overall Covid-19 strategy, as this is, in the employer’s considered opinion, the most reasonable and responsible course of action as prescribed by general medical and scientific consensus and best practices.
• 5.5 Where possible and reasonable, individual employees will be afforded every opportunity to be educated and counseled on the vaccination policy, its consequences and necessity for such a process, including the safety standards and medical compliance used in the process.
• 5.6 Where reasonable and supported by the medical best practices and advice applicable, as the only viable solution, and employee may be exempted from the vaccination policy, or the implementation thereof may be deferred as those circumstances may dictate. This will however be entirely dependent on clear medical advice submitted by a fully qualified medical professional(s) as may be acceptable to the employer, and where such medical advice as submitted may be of a conflicting nature the employer retains the discretion and operational responsibility to make a decision despite such contrasting medical opinion.
• 5.7 In the event of an employee, despite such consultation, counselling and postponements as may be necessary in the employer’s discretion, persisting in refusing to be so vaccinated or to comply with any part of this policy or an instruction given to her / him in terms hereof, such persistence and / or refusal will be viewed as (depending on the prevailing situation at that stage of the consultation process) a situation then regarding the normal processes dealing with possible termination of that employment agreement due to operational requirements, incapacity of the employee, or misconduct, and such process will be commenced with at the conclusion of the consultative process in terms of this policy.
• 5.8 Once that stage has been reached the employer reserves the right, whether in terms of its own general disciplinary processes or as a necessary implementation of this policy, to take such steps as may be reasonably required so as to effect the policy goals as stated above or as may be necessitated by circumstances at such time. These steps may include, but are not limited to, the precautionary immediate suspension of such employee(s) and the implementation of the existing processes relative to any of the three categories indicated above.  
• 5.9 The employer reserves the right to also proceed against any employee refusing to comply with this policy on the basis of poor work performance, absenteeism or the causing / contributing to poor work attendance and other directly linked operational problems.
• 5.10 This policy will be used in pursuance of the goals stated herein and such Covid-19 obligations as the employer may have from time to time, including in the event of new Covid-19 lockdown regulations, and this policy does not detract or limit the employer’s rights in terms of any such lockdown regulations, a change in its own Covid policy based on new medical or scientific evidence or its own internal disciplinary processes.
• 5.11 In particular, the employer emphasizes that, given the legal obligations vested in the employer and the goals of this policy a breach of this policy may lead to the dismissal of the employee if that is found to be warranted as part of the employer’s consultative and disciplinary processes.
• 6. DURATION OF THIS POLICY

 This policy will remain in effect, as indicated herein and as may be amended in writing from time to time, until such time as it is formally terminated by the employer, which termination will be in writing and on notice to all employees. No variation of this policy will be effective unless so reduced to writing, issued and signed by the employer. 

NOTE TO THE EMPLOYEE This policy contains important changes to pre-Covid workplace rules. It affects, or may affect, your rights. The topic of workplace vaccinations is a contentious one, mostly caused by fake information and the irresponsible sharing of dubious medical opinions. We want to make this process as easy and as constructive as possible. If, in addition to our own private and confidential information and counselling processes that we refer to above you also wish to obtain your own advice on any of the topics related to the policy you are entitled to do so, at your own cost, within the time-frames that the employer may schedule from time to time. You may obtain such advice prior to signing this policy. Should you choose not to be vaccinated as required the consequences of such a decision will be managed in terms of par. 5 above. 

SIGNED AT                                             ON THIS                DAY OF SEPTEMBER 2021  

………………………………………….

EMPLOYEE:   

………………………………………..

EMPLOYER