Practically, how far can employers with mandatory vaccination policies go to ensure healthy and safe workplaces and to accommodate unvaccinated employees? Can employers require their unvaccinated employees to produce polymerase chain reaction (“PCR”) negative test results periodically… at their own cost? We discuss the key considerations for employers grappling with this question.
At face value, requiring unvaccinated employees to produce negative COVID-19 test results regularly, rather than being fully vaccinated, appears to be justifiable as a reasonable accommodation measure to minimise COVID-19 health and safety risks in the workplace. This would likely be contingent on several factors, including:
- the efficacy of the test – there are many different tests available the most effective being the PCR test;
- the period of validity of the test; and
- the frequency with which employees are required to produce the test results.
Accordingly, the frequency and efficacy of the chosen test must achieve the desired purpose of ensuring a healthy and safe work environment as far as reasonably practicable. If an employer only requires employees to test negative every two weeks, this is unlikely to ensure a healthy and safe environment where the employees are in-office every day and in circumstances where a negative test may only be valid for 72 hours.
The question of whether the production of a negative test is one aspect that an employer must consider when implementing a testing regime. However, the question on most employers’ minds is who will pay? Seemingly a knee-jerk reaction is to require employees to pay where they have refused the vaccination. It may be more tricky than that, though.
Of course, where unvaccinated employees are happy to pay for the tests themselves, there is unlikely to be an issue. It may also be possible for employers and unvaccinated employees to agree to a payment plan in terms of which the costs of the tests may be split between the parties. Where discord is created by requiring employees to pay for testing solely, employers should expect legal challenges.
What is the position in the Consolidated Direction on Occupational Health and Safety in Certain Workplaces (“Consolidated Direction”)?
The Consolidated Direction is not specific or prescriptive on the issue of payment for COVID-19 testing. In fact, it deals fairly cursorily with the topic. While this might indicate that an employer is free to approach accommodation as it deems fit, other considerations need to be taken into account, for example:
- The employer holds the primary obligation to provide a healthy and safe working environment; and
- The Courts’ approach to an employer using cost considerations as a reason not to implement an accommodation.
In respect of the latter, our Courts have set a high standard for employers when considering the accommodation of employees. For example, in Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Court was called on to review a CCMA commissioner’s decision that the dismissal of an employee, who was injured at work and could no longer perform her normal duties, on the grounds of incapacity was unfair. In attempts to accommodate the employee before she was dismissed, the Bank had sought medical advice, sent the employee home when she was in pain, kept the employee at the same salary level for more than two years, explored and offered the employee alternative jobs, and gave the employee four months’ sick leave to help her recover.
However, the Labour Court held that although “the Bank was [seemingly] patient, tolerant and even charitable towards [the employee]”, these measures were insufficient because the Bank had not, among other things:
- given the employee a headset to operate the telephones comfortably and a comfortable chair or
- adjusted the employee’s workstation.
The Labour Court found that the cost of implementing the type of reasonable accommodation that was being sought (being the headset, chair and adaptation of the workstation) would have been so “infinitesimal” as to not constitute undue hardship when juxtaposed with the resources at the command of the Bank. As a result, the Labour Court found that the incapacity dismissal was unfair and that the Bank had unfairly discriminated against the employee.
Consequently, for an employer to escape paying for a reasonable accommodation (such as COVID-19 testing) it would need to show that by doing so, it would cause the employer undue or unjustifiable hardship.
The Employment Equity Act, 1998 Code of Good Practice on the Employment of Persons with Disabilities (“EEA Code”) defines “(u)njustifiable hardship” as “action that requires significant or considerable difficulty or expense...” The EEA Code also acknowledges that an accommodation that is an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time.
This means that each employer will need to consider whether it can afford to implement COVID-19 testing. This will likely require an evaluation of the type of tests available, their costs, the number of employees to be accommodated and the frequency of the tests.
If the cost of implementing COVID-19 tests is within an employer’s means, then they would likely be hard-pressed to justify requiring employees to pay for the test. If it is the case that it will cause the employer unjustifiable hardship, it might be justified in offering employee-funded testing to the employee as an alternative to dismissal (in circumstances where there are no other reasonable accommodations that can be made). Similarly, it might be justifiable that the costs are shared between the employer and employee.
Ultimately, employers should guard against too robust of an approach when navigating legitimate objections to vaccinations as it might be seen as punitive. The legal framework relating to reasonable accommodation holds employers to a fairly high threshold which ordinarily requires the employers to foot the bill for any accommodation offered.