There is much controversy and confusion about how Covid-19 should be managed in the workplace. Are vaccination mandates still appropriate? Also, do employees still have to be screened, wear masks, sanitise and keep a distance?
1. The Law
When the State of Disaster ended on 5 April 2022, it was replaced by a Code of Good Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 (“the Code”) in terms of the Labour Relations Act.
The most important points of the Code are summarised in our article of March 2022 (click here for full article). In this article we will consider to what extent vaccine mandates are still necessary or appropriate.
2. Vaccine mandates
Along with several other precautionary measures, the Code legitimises the implementation of measures that require employees to be vaccinated and dates by which employees must be “fully vaccinated”. The Code does not prescribe vaccine mandates, though.
It is the responsibility of each employer to determine what measures it should apply in a particular workplace, or different areas in the workplace. Measures may need to be changed depending on the prevalence of Covid-19 and its variants, the rate of infection and the severity of symptoms at any particular time.
In previous articles on this subject, we have consistently suggested that plans or policies should be flexible in order to anticipate and accommodate changes in circumstances.
How deadly was Covid-19?
Before the advent of the Omicron variant, Covid-19 was indeed very deadly. According to an article published in the British Medical Journal in October 2021 (before Omicron), Covid-19 was roughly 100x as deadly as the annual flu in both the US and the UK.
In South Africa the average overall mortality rate, as reported by the South African Medical Research Council, increased by about one third since the start of the pandemic until the end of December 2021 (i.e., roughly 16 per 100,000 per week compared to the pre-Covid average of 12 per 100,000 per week). This translates into a total of about 316,500 excess deaths. While the cause of many of these deaths cannot be definitively established, the sheer size of the increased mortality in the presence of Covid strongly suggests that the majority were due to the pandemic.
When vaccines were first introduced, the likelihood of the vaccinated contracting the virus was reduced significantly (in the early stages of administration certain vaccines were, according to the Institute of Health Metrics and Evaluation at the University of Washington reported to be as high as 92% effective in preventing infection). Similarly, the rate of transmission by the vaccinated to others was substantially reduced (by 50-70%).
These factors underpinned the rationale in favour of vaccine mandates, especially in workplaces and for certain jobs where the likelihood of transmission was high. Employers had to identify and take particular care to protect employees who were vulnerable (those at high risk of serious illness or death due to age or comorbidities).
Much has changed since then, though.
Less deadly now
There appears to be consensus among medical professionals that the impact of Covid-19 has changed significantly. This can be attributed to increased overall immunity, as well as the advent of the Omicron variant towards the end of 2021.
Omicron and its sub-variants appear to be much less deadly. A recent study published in the International Journal for Infectious Diseases found Omicron to be roughly about one fifth as dangerous as earlier strains, (i.e., the infection fatality rate (IFR) has reportedly reduced by approximately 78.7% compared to that IFR of previous variants).
Comparing Omicron to the flu, the Financial Times reported an analysis which illustrated that the fatality rate of Covid-19 in England dropped to somewhere approximately 2x that of flu by January 2022 and possibly to about the same as, or even less than, the flu fatality rate by early March 2022. The data are somewhat variable, but the trend seems to be clear.
With Omicron still being the dominant variant, along with increasing overall immunity, the average overall mortality rate in South Africa is dropping towards the pre-Covid five-year average of about 12 deaths per 100,000 per week. As far as overall mortality is concerned, we therefore seem to be where we were prior to the pandemic.
Efficacy of vaccines diminished
Besides the mortality rate having dropped dramatically, medical experts have observed that the efficacy of vaccines – in terms of preventing infection – has diminished sharply. In terms of the risk of infection, the protective factor of vaccination is now less than 30% against Omicron.
Even more relevant in terms of consideration of mandates is that being vaccinated no longer reduces transmission in any significant measure compared to not being vaccinated.
In the meantime, the level of immunity in the general population of South Africa has continued to rise, contributing to the most recent (5th) wave of infection being miniscule compared to the previous four waves.
While being vaccinated no longer provides the protection against infection that it used to, the risk of serious disease or death is at least reduced significantly. But how strong is the case in favour of vaccine mandates?
Given the developments described above, employers who have not yet introduced vaccine mandates need to seriously consider whether there is still a sound rationale for doing so. Employers who have already introduced mandates should seriously consider whether the time has arrived for relaxing or suspending mandates, or doing away with them altogether.
There may still be circumstances where it would be necessary or reasonable for employers to require certain employees to be vaccinated (such as medical professionals who are exposed to vulnerable patients; employees who are required to regularly travel to destinations where vaccination is a requirement; or employees who have to perform work at the premises of a clients who still require proof of vaccination). However, these circumstances are in a progressive decline in line with diminishing risks associated with Covid-19, as well as the relaxation of restrictions in South Africa and across the world.
The relaxation or disposal of vaccine mandates should be approached with caution, though. As with the original risk assessment that employers were required to perform, there are several aspects to take into account. Covid-19 is still with us, is highly infectious and its development is unpredictable.
The first step would be to do a proper reassessment of the risk. Employers should then consult with employees and their representatives before changing vaccine plans or policies.
3. Dismissing the unvaccinated
The dismissal of the unvaccinated has been highly controversial and divisive. Many cases have found their way to the CCMA and several awards have been taken on review to the Labour Court.
CCMA cases support dismissal of unvaccinated
Employers who are still intent on enforcing mandatory vaccination (by dismissing employees who refuse) may feel encouraged by the fact that the CCMA has consistently found in favour of employers who have dismissed employees who have refused to be vaccinated. However, these dismissals have mostly occurred before the advent of Omicron. In all instances, the dismissals were found to be substantively fair based on the specific factual circumstances of each matter.
Much has changed and the current state of play is very different.
Rationale wearing thin
Dismissal for refusal to be vaccinated can only be justified if there is a sound rationale for vaccine mandates in the first place. It follows that, with the rationale for mandates wearing thin, the rationale for dismissing the unvaccinated should also be re-evaluated.
While the Code acknowledges the legitimacy of vaccine mandates, it sets rather stringent requirements for employers wanting to implement and enforce those mandates.
In circumstances where there appears to be an operational reason for terminating the employment of an unvaccinated employee, employers also need to be mindful of pre-dismissal requirements. An employer would have to show that it has done a risk assessment, introduced a vaccination plan, notified employees identified for vaccination, counselled the employee who refused to be vaccinated, given the employee permission to consult others, and explored ways to reasonably accommodate the employee.
In our view an employer should also be able to show that its vaccination plan or policy is still relevant when the decision is made to dismiss the employee. Also, given the reduced risk associated with Covid-19, it should be easier to accommodate the unvaccinated than would have been the case at the height of the pandemic before Omicron.
It will in our view become increasingly difficult to justify the dismissal of an employee who refuses to be vaccinated.
There was a time when vaccine mandates (and dismissing employees who refused to be vaccinated) were justified in certain circumstances. In our view the time has come, subject to some exceptions, for employers to seriously consider whether vaccine mandates are still necessary or appropriate.
Every employer should still have a risk management plan or policy, but such plan should be flexible so that it can be adjusted to changes in the prevalence of Covid-19 and its variants, the rate of infection and the severity of symptoms at any particular time.
In the rare circumstances where vaccine mandates may still be justified, employers should think twice before dismissing employees who refuse to be vaccinated.
Jan Truter for www.labourwise.co.za