Avoiding Abuse of Vaccination Leave
Reported on: Quarter 3 2021
Written by FAAN COETZEE, RIOLA KOK AND MAYSON PETLA
Published in Employment Law- Feature
The abuse of leave provisions is a bug bear for all employers. The problems associated with managing employee leave have been exacerbated by the remote working environment, where employers have even less control over the conduct of employees. With the introduction of special leave associated with receiving COVID-19 vaccines or any side effects associated therewith, employers must ensure that the rules pertaining to COVID-19 vaccination leave are clearly communicated to employees in order to avoid any abuse.
On 11 June 2021, the Department of Employment and Labour gazetted the updated Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces (the Directions), which brought an end to the debate on whether employers were permitted to implement mandatory vaccination policies in the workplace.
The Directions also introduced a special category of leave, in terms of which an employer must allow all employees one day’s paid leave in order to receive the COVID-19 vaccine – provided that the employee can show proof of vaccination and that the scheduled vaccination falls within working hours.
In addition, where an employee experiences side effects following a COVID-19 vaccination, in terms of the Directions, an employee is entitled to paid sick leave in terms of the Basic Conditions of Employment Act (75 of 1997) (BCEA), in order to recover. Where an employee has exhausted their sick leave provisions in terms of the BCEA or any applicable collective agreement, the employee is entitled to lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (130 of 1993). To this extent, where an employee intends to make use of sick leave in order to recover from the side eects of the COVID-19 vaccine, the OHS Directions provide that an employee may submit a vaccination certificate.
Do the Directions require an employer to accept a vaccination certificate as proof of an employee experiencing side effects of a COVID-19 vaccination? May an employer still request an employee to produce a medical certificate as proof in terms of s23 of the BCEA, notwithstanding the employee producing their vaccination certificate?
In terms of s23 of the BCEA, an employer is not obliged to grant an employee paid sick leave where they have been absent from work for more than two consecutive days, or on more than two occasions within eight weeks, and where on request from the employer, the employee fails to produce a certificate as proof of their absence due to illness or injury.
Employers may require employees suffering from side effects of vaccination to provide medical certificates where they request sick leave for a Monday, Friday or for two or more consecutive days. As a result of the uncertainty associated with the side effects of COVID-19 vaccinations, an employer, if required to simply accept an employee’s word that they are experiencing side effects, is placed in a precarious position as they cannot independently verify whether the employee is indeed sick and requires sick leave. This predicament exposes the employer to the risk of employees abusing sick leave. This can only be ameliorated by requiring employees experiencing side effects to seek medical attention at the earliest opportunity and submit medical certificates as proof.
Further, the South African government’s Electronic Vaccination Data System (EVDS), which is the system used to assist in the management and surveillance of COVID-19 vaccines will, among others, monitor the side effects of vaccines. Thus, by requiring vaccinated employees to seek medical attention if they experience side effects, the employer not only promotes the employees’ wellbeing, but also assists Health Authorities in monitoring the side effects of the various vaccines. It is noteworthy that the duty of vaccinated persons to report side effects to Health Authorities is also stated on COVID-19 vaccination record cards.
For these reasons, an employer is not compelled to accept a vaccination certificate in lieu of a medical certificate. A vaccination certificate only proves that an employee was vaccinated at a specific vaccination site; it is not proof that the employee experienced side effects as a result of the vaccination. As such, an employer can compel employees to produce medical certificates in terms of s23 of the BCEA where they apply for paid sick leave because of side effects due to receiving a COVID-19 vaccination. Employers must ensure that this position is clearly communicated to employees and contained in the mandatory vaccination policy.