Company rewards for vaccine
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    • In some parts of the world, companies are paying their employees to be vaccinated.
    • While that can keep the workplace healthy and safe, South African companies using rewards to circumvent the current legislation on mandatory vaccination policies risk trouble.
    • An incentive could be construed by some employees as unfair discrimination or an unfair labour practice.
    • And companies need to know how to defend against these claims, or face penalties from the department of employment and labour.
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    Incentivising employees to be vaccinated against Covid-19 may be a good way to keep the workplace healthy and safe, but companies risk running afoul of South Africa’s labour laws if they’re not careful.

    As countries look for the quickest ways in which to achieve herd immunity against Covid-19, incentives are being used to combat vaccine hesitancy. South African retailer Game recently announced in-store discounts for those who can prove they’ve been vaccinated, while Wimpy is handing out free filter coffees.

    In other parts of the world, the rewards are much bigger. Some parts of the United States have a lottery system which offers fully vaccinated citizens a chance to win big cash prizes. Businesses in the United Kingdom are offering clothing vouchers, free meals, and discounts to young adults who get their shots.

    And this strategy extends beyond big retailers and brand names. Companies are paying their employees to get vaccinated. For others, it is mandatory.

    South Africa’s policy on mandatory vaccinations in the workplace is young, having only been addressed through the Consolidated Occupational Health and Safety (OHS) Direction published in June.

    The new rules requires companies to undertake a risk assessment – in consultation with labour unions and safety committees – before implementing a mandatory vaccination policy.

    Employers have a responsibility, under the OHS, to ensure the safety of all their workers, which can be cited as justification to implement a mandatory vaccination policy. Employees can refuse to be vaccinated by invoking their constitutional rights to bodily integrity, freedom of religion, belief, and opinion, or raising medical concerns.

    “Ultimately, we now have a situation where it’s constitutional grounds at play and the Constitution is our supreme law… our rights are enshrined therein but no right is without limitation and our Constitution makes provision for this,” said Mehnaaz Bux, an attorney specialising in employment and labour law, at Webber Wentzel.

    Bux, along with her colleagues at Webber Wentzel, Jamie Jacobs and Shane Johnson, recently presented their take on the new vaccination policies during a webinar hosted by Cape Town Tourism. The legal experts stressed that these policies were untested in the courts.

    “We foresee this being before our Constitutional Court for guidance and final determination,” said Bux.

    And while legislative guidelines exist for mandatory vaccination policies in the workplace, no such framework exists for companies looking to incentivise their employees to be vaccinated.

    “Depending on the nature of the employer's business and the number of employees, it may be advisable for an employer to consider incentives for employees who are vaccinated,” the Webber Wentzel team told Business Insider South Africa.

    “Such incentives may assist the employer to increase the rate of vaccination in their workplace and achieve ‘herd immunity’ thereby ensuring that the working environment is healthy and safe.”

    But companies need to have a clear understanding of their objectives and messaging when considering rewards for vaccinated employees. Bux and her colleagues say employers should ask themselves the following questions:

    • What is the main intention/purpose behind offering incentives to employees? Is it to contribute to public health efforts and protect the well-being of employees? Is it to circumvent current legislation around mandatory vaccination?
    • Whether employees who refuse vaccination on constitutional or medical grounds will still be entitled to the incentive?
    • Whether it is possible for the incentive to be construed by some employees as unfair discrimination or an unfair labour practice? And how to defend potential claims by employees?

    Companies who deploy a rewards programme as a way of shortcutting the latest OHS legislation on mandatory vaccination policies could land in hot water.

    “Employers should therefore make it clear that vaccination is voluntary and that the incentive will be afforded to employees who voluntarily elect to be vaccinated,” said the Webber Wentzel team.

    “Employers who seek to incentivise employees must be careful not to cross the line into coercing employees to be vaccinated. This will generally be the case where an employee could be deprived of a benefit if they are not vaccinated. Employers who attempt to coerce employees to be vaccinated may open themselves to unfair discrimination and unfair labour practice claims by aggrieved employees.”

    Companies that are proven to have coerced employees into being vaccinated face certain penalties and fine imposed by the department of employment and labour.

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