The updated Consolidated Direction on Occupational Health and Safety Measures in certain Workplaces gave employers until 2 July 2021 to undertake or update their risk assessments to determine whether they intend to make vaccinations mandatory and for whom. But what can happen to employers who have missed the deadline?
Aside from the monitoring and enforcement mechanisms outlined in the Directive, which include the extensive powers of labour inspectors, there are various other potential risks and consequences which non-compliant employers should appreciate.
Although unlikely, employees could refuse to tender their services due to the employer’s failure to conduct a risk assessment.
Employers may be tempted to discipline employees for doing so but should be careful in adopting this approach. The Directive provides that an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative, to pose an imminent and serious risk of their exposure to COVID-19.
Risk is fluid and invariably changes over time. As the virus mutates and the pandemic runs its course, it is crucial for employers to undertake their risk assessments and reassess their risk regularly to fall within the bounds of the law.
Obviously, not conducting the risk assessment doesn’t necessarily render the workplace unsafe. However, the failure by the employer to address any increased risk may do so. In this regard, before jumping to issuing a warning or dismissing employees, employers should properly evaluate whether or not the workplace is, in fact, healthy and safe. If it is not healthy and safe, then employers, regardless of the deadline having lapsed, should still conduct the risk assessment and adapt the workplace accordingly (including, where necessary, implementing a vaccination policy).
In the absence of a justifiable reason to withhold their labour, employers would be entitled to discipline employees for their non-attendance at the workplace.
Whistleblowing and remedies
Non-compliant employers should likewise appreciate the risk of their employees blowing the whistle on their employers’ failure to conduct a risk assessment in terms of the Directive. A whistleblowing employee may decide to inform a labour inspector of the employer’s non-compliance, who will in turn be able to investigate the alleged non-compliance and exercise their extensive powers in terms of the Directive and applicable labour legislation.
A failure to conduct a risk assessment in terms of the Directive may well constitute wrongdoing for the purposes of the Protected Disclosures Act (“PDA”). Wrongdoing includes, amongst other things, a person’s failure (or likely failure) to comply with any legal obligation imposed on that person and the health or safety of an individual is (or is likely to be) endangered.
An employee’s disclosure of this failure may constitute a protected disclosure as defined in the PDA. If this is the case, and if the employer dismisses the employee for making such a protected disclosure, this dismissal will be automatically unfair. If the employer takes any other form of “occupational detriment” against the employee this action may constitute an unfair labour practice.
If an employee resigns and can show that the failure to conduct a risk assessment, to prepare and implement a workplace plan, and to maintain a healthy and safe work environment had the effect of making continued employment intolerable (objectively), a non-compliant employer may also be confronted with a claim for constructive dismissal. The merits of such a claim will once again depend largely on the facts of each case.
With the above in mind, employers need to appreciate the importance of conducting a risk assessment as well as the potential consequences of failing to do so. Employers who have missed the risk assessment deadline need to act swiftly, ensure that they undertake or update their risk assessments as a matter of urgency, and seek trusted legal advice where necessary. Time is of the essence.