ANALYSIS | Jacqui Reed: Working from home and the mandatory vaccine policy: Any intersectionality?

Where an employer seeks to introduce a mandatory vaccination policy and an employee objects to its implementation, the employer is obliged to determine whether it is able to accommodate the employee reasonably, writes the author.
Where an employer seeks to introduce a mandatory vaccination policy and an employee objects to its implementation, the employer is obliged to determine whether it is able to accommodate the employee reasonably, writes the author.
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With companies implementing mandatory vaccine policies, many employers have expressed the view that "reasonable accommodation" would not include permitting the employee to work from home in perpetuity. Jacqui Reed looks at what the law says.

On 31 December 2019, the World Health Organisation's Country Office in China picked up a media statement by the Wuhan Municipal Health Commission on cases of 'viral pneumonia' in Wuhan, China.  

On 9 January 2020, WHO reported that Chinese authorities determined that a novel coronavirus caused the outbreak. 

On 30 January 2020, the WHO declared the novel coronavirus outbreak a public health emergency of international concern. 

On 11 February 2020, WHO announced that the disease caused by the novel coronavirus would be named Covid-19. 

On 11 March 2020, WHO made the assessment that Covid-19 could be characterised as a pandemic. 

On 15 March 2020, South African President, Cyril Ramaphosa, declared a national state of disaster in terms of the Disaster Management Act, 2002. 

On 23 March 2020, President Ramaphosa announced a nationwide lockdown for a period of 21 days with effect from 26 March 2020. This was extended for a further 14 day period. During this period, only those employers and employees engaged in essential services (hospitals, pharmacies and food retailers) were permitted to continue to operate. Those employees who were able to work from home due to the nature of their position and/or their ability to access the necessary resources, were required to do so. The requirement to remain at home emanated from a directive issued by the South African government, and all South African employers were therefore required to comply with it. 

Introduction of vaccines

Slowly, the South African government began to ease restrictions and in the latter half of 2020, the majority of employers were permitted to continue trading during ordinary working hours, which meant that most employees were permitted to attend at their workplace, rather than work from home. Many employers, however, instructed their employees to remain at home. It was only during the latter half of 2021 that employers began encouraging employees to return to the workplace once most South Africans between 18 and 65 (i.e. working population) were eligible for vaccination. 

It is at this stage that employers began re-assessing their requirements insofar as working from home as opposed to working from the office was concerned. 

Employers were advised (prior to considering whether a change to an existing policy was required and/or whether it was necessary to introduce a policy), to consider the clause in the contract of employment which addresses the employee's place of work.

Section 29 of the Basic Conditions of Employment Act requires employers to provide the employee with certain written particulars of employment, including, but not limited to, the employee's place of work. In some employment contracts, the clause makes provision for a change to the employee's place of work from time to time. In the event that this provision was contained in the contract of employment, it may not be necessary from a legal perspective for the employer to amend an existing policy and/or introduce a policy because the contract of employment makes provision for flexibility. The employer is then required to consider whether it is comfortable with employees working exclusively from home or any other location in perpetuity and to only attend at the workplace for certain purposes such as training and development or administration. Interestingly, PWC in the United States announced recently that its employees are required to attend the workplace for no more than three days per month and are permitted to work from whatever location they chose in perpetuity. 

READ | Analysis: Jacqui Reed: Mandatory vaccine policies in the workplace - what the law says

In the event that the contract of employment does not make provision for a change to the workplace from time to time, and there is no flexible or agile working policy, the employer will need to introduce one in the event that it seeks to introduce a hybrid working model.

While the introduction of a policy may constitute a change to terms and conditions of employment, it is improbable that employees will object to changes which permit them to work from home. However, in order to ensure a smooth transition to a hybrid working model, employers are advised to consult with employees fully.

Where the employer seeks to introduce a mandatory vaccination policy and an employee objects to its implementation, the employer is obliged to determine whether it is able to accommodate the employee reasonably. Reasonable accommodation is defined as any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. The definition incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act, 1998 (Code). This might include an adjustment that permits the employee to work offsite or at home or in isolation, such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, this might include requiring the employee to wear a N95 mask. 

The Code provides that reasonable accommodation includes, but is not limited to:

• Adapting existing facilities to make them accessible;

• Adapting existing equipment or acquiring new equipment;

• Re-organising work-stations;

• Changing training and assessment materials and systems;

• Restructuring jobs so that non-essential functions are re-assigned;

• Adjusting working conditions including working time and leave;

• Providing specialised supervision, training and support in the workplace. 

Importantly, the Code provides that the employer need not accommodate an employee with a disability if this would impose an unjustifiable hardship on the employer's business. "Unjustifiable hardship" is action that requires significant or considerable difficulty or expense, and factors such as whether there would be a serious disruption to the operation of the business should be considered

Many employers have expressed the view that "reasonable accommodation" would not include permitting the employee to work from home in perpetuity. Employers believe that there is no position that does not require an employee to attend at the workplace.

READ | Ben Winks: Does the Constitution allow compulsory vaccination? Yes, it commands it

An absent workforce has a negative impact on employee morale, camaraderie and the creation of corporate culture. Also, it impacts on the training of junior employees and their ability to gain on-the-job experience from their seniors. Employees are also required to attend the workplace for the purposes of IT administration as well as training and development sessions or workshops. Employers have also found that isolation from the workplace and from colleagues is detrimental to employees' mental and physical health. 

An employer whose business and operational requirements do not permit reasonable accommodation in the form of working exclusively from home because the employee refuses vaccination would not be precluded from dismissing the employee.

A policy that permits a hybrid working model must clearly stipulate that employees will be expected to come to the workplace regularly (most employers provide for a 60/40 split, in favour of working from the office) and that the reasons for this are objectively fair and justifiable. 

- Jacqui Reed, Employment lawyer and Senior Associate at law firm Herbert Smith Freehills.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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