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In June 2021, the South African government published a directive allowing employers to insist on mandatory vaccination in the workplace. The directive is also clear that workers have the right to object or refuse mandatory vaccination based on their constitutional rights or medical grounds.
But how does this play out in the home, as thousands of families rely on childminders to care for their children? We asked a local attorney about the rights of childminders, and their employees, when it comes to mandatory vaccination.
Read: Unvaccinated and pregnant? You're at a higher risk of severe illness and early labour, studies show
Advocate Jade Lawson is a legal professional at LAW FOR ALL. She specialises in family and divorce mediation and first reminds us that "childminders are included in the definition of a "worker" in the Occupational Health and Safety Act 85 of 1993 (OHSA)."
She says that for that reason, the law protects them and requires their employers to make the workplace safe and free of health risks as far as reasonably possible.
She says that if a vaccination policy has been introduced in the home, for health and safety reasons, a childminder's employer and their family should also be vaccinated to protect the childminder from the transmission of Covid-19 at the workplace.
Adding that even if the childminder is not considered high risk, they may still be vulnerable to the severe effects of Covid-19 or any mutations such as Omicron, or they may transmit Covid-19 to the employer and the employer's family.
For these reasons, Lawson says that "a mandatory Covid-19 policy may be considered justifiable, especially if the childminder can't maintain social distance and works near a child or household members."
"In such circumstances, where a childminder refuses to be vaccinated, the employer could dismiss them based on operational incapacity," added Lawson.
Also see: Nurses hesitant to vaccinate children without parental consent, saying 'They're way too young'
Childminders with underlying illnesses
"Any worker more than 60 years old or with a co-morbidity such as diabetes, for example, is considered a "vulnerable employee" in the directive," says Lawson.
She says that vulnerable employees are at greater risk of severe illness or death when contracting Covid-19.
She added that the employer may deem it necessary for the domestic worker to receive the mandatory vaccination to protect both the employee and employer.
"If that is the case, the employer should have a formal discussion with the domestic worker to advise them of the risk of transmission of Covid-19 and should issue the employee with a formal notice that a mandatory vaccination policy will be introduced. The employee has the right to object," says Lawson.
She added that the employer should counsel the employee and seek further guidance should that be necessary. Should the employee refuse to be vaccinated, Lawson says that the employer will consider alternative ways to accommodate them.
"If the employer cannot accommodate the domestic worker, dismissal due to operation incapacity is allowed as long as the employer dismisses the employee in a procedurally fair manner," Lawson told us.
Also read: 'Attendees must be vaccinated': Ballito Rage organisers talk safety measures at this year's event
Employer's rights and mandatory vaccination
If the employee refuses the vaccination, Lawson says that employers also have the right to require unvaccinated employees to go for weekly PCR tests.
"Mandatory PCR testing would be considered 'medical testing' in Section 7 of the Employment Equity Act 55 of 1998," explains Lawson.
Adding to that, she says that employers seeking to introduce weekly PCR tests need to establish that it is justifiable considering medical facts, employment conditions, social policy, and fair distribution of employee benefits of the inherent requirements of the job.
"An employer has the right to request employees to work remotely or in isolation to minimise the risk of transmission of Covid-19. And while at work, may require them to wear PPE," says Lawson.
"Employers have the right to request an employee's vaccination certificate. However, they must be mindful of the Protection of Personal Information Act 4 of 2013 (POPIA) provisions when asking employees or potential employees to make disclosures regarding their medical or vaccination history," added Lawson.
She says this is because such information constitutes unique personal information, and accordingly, consent may be mandatory for POPIA.
Must read: Here's why the Covid-19 vaccine is vital for your school-going child
Does refusal result in dismissal?
Lawson says employers can dismiss their childminder if they refuse to be vaccinated, but that should be the last resort after reasonably accommodating their employees.
"Domestic workers and childminders cannot work remotely, and often working in isolation is not possible. Therefore, the only way an employer could accommodate them is by providing additional PPE's such as an N95 mask, sanitisers and so on," says Lawson.
"The employer may also enforce mandatory weekly PCR testing at the employee's own cost. However, considering that most domestic workers and childminders can't afford this, it would not be practical," added Lawson.
Lawson says that the employer may also enforce mandatory weekly PCR testing at the employee's own cost. But considering that most domestic workers and childminders can't afford this, Lawson says it would not be practical.
She warns that in situations where the risk of transmission is high or if the employer and their family have co-morbidities, they may have no alternative other than dismissal based on operational incapacity.
But she stresses that the employer needs to follow the correct procedure to avoid being taken to the CCMA. Should things turn out this way, Lawson says that it's essential to keep in mind that employees should be allowed to object and consult a legal representative.
She says that the employer should issue a formal dismissal letter, pay the employee all unpaid salaries and any due leave, and provide them with their UI19 forms when this happens.
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