With the end of the National State of Disaster, some employers have become complacent about determining their employees' vaccination status or keeping this information up to date. Many employers rely on outdated vaccination status surveys or operate under the misapprehension that their workforce's vaccination status is of no consequence to their current operations. This can't be further from the truth. Below, we discuss the importance of employers taking steps to determine employees' vaccination status, and the impact of failing to do so.
The New Code and POPIA compliance
Firstly, in terms of the Code of Practice on managing exposure to COVID-19 in the workplace (the "New Code"), issued by the Department of Employment and Labour on 15 March 2022, every employer must take measures to determine the vaccination status of its employees. With the advent of booster shots, an employee's vaccination status can be a moving target. The New Code recognises this and has expanded the definition of vaccinated to include booster shots. A consequence of this new obligation under the New Code means that employers who have not collected their employees' vaccination status ought to collect this information which ought to include information regarding employees' booster shots.
The question then arises: is it a "must" to keep these records up to date?
The Protection of Personal Information Act, 2013 ("POPIA") provides that a responsible party (the employer in this instance) must take reasonably practicable steps to ensure that the personal information of its employees is complete, accurate, not misleading and updated, where necessary. This means that an employer must verify (through obtaining employees' vaccination certificates) that the employees are, in fact, vaccinated and what the status is in respect of booster shots. This is particularly the case if employers are relying on their employees' vaccination status when assessing the risk to health and safety in the workplace.
An employer may have, based on a risk assessment, deemed it unnecessary to implement mandatory vaccination because of a high vaccination rate in its workforce. Similarly, an employer may have implemented a mandatory vaccination policy and then ceased to impose mandatory vaccination once a certain percentage of the workforce became vaccinated.
But has this risk assessment been updated? If the risk assessment was undertaken prior to the introduction of booster doses, an employer's vaccination rate may have fallen from 90% to 10% in the scenario where employees have failed or refused to receive their booster shot(s) and the efficacy of their initial doses has waned. If a risk assessment has not been updated since employees have become eligible for boosters, and employers do not know the current vaccination status of their employees, the risk assessment may not reflect the true risk in the workplace and the workplace may not be as healthy and safe of an environment as the employer believes.
The risk assessment that employers are required to conduct, should be a living document and updated regularly. It needs to be informed by, not just vaccination rates, but developments in the COVID-19 landscape.
Bottom line
The bottom line is that it is important for all employers to know their employees' vaccination status, especially where there is a vaccination policy in place. The percentage of a workforce that is vaccinated will directly inform the risk assessment every employer is required to conduct and this information must be updated on a regular basis. Employers are encouraged to seek legal advice where necessary to ensure that their risk assessments and policies are up to date and legally compliant, and that they obtain, maintain and retain their employees' vaccination status within the bounds of the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
