EMPLOYMENT LAW
Can employers require unvaccinated employees to take PCR COVID-19 tests regularly. . . at their own cost? P
ractically, how far can employers with mandatory vaccination policies go to ensure healthy and safe workplaces and to accommodate unvaccinated employees? Can employers require their unvaccinated employees to produce polymerase chain reaction (“PCR”) negative test results periodically… at their own cost? We discuss the key considerations for employers grappling with this question. At face value, requiring unvaccinated employees to produce negative COVID-19 test results regularly, rather than being fully vaccinated, appears to be justifiable as a reasonable accommodation measure to minimise COVID-19 health and safety risks in the workplace. This would likely be contingent on several factors, including: • • •
the efficacy of the test – there are many different tests available the most effective being the PCR test; the period of validity of the test; and the frequency with which employees are required to produce the test results.
Accordingly, the frequency and efficacy of the chosen test must achieve the desired purpose of ensuring a healthy and safe work environment as far as reasonably practicable. If an employer only requires employees to test negative every two weeks, this is unlikely to ensure a healthy and safe environment where the employees are in-office every day and in circumstances where a negative test may only be valid for 72 hours. The question of whether the production of a negative test is one aspect that an employer must consider when implementing a testing regime. However, the question on most employers’ minds is who will pay? Seemingly a knee-jerk reaction is to require employees to pay where
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SEIFSA NEWS
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they have refused the vaccination. It may be more tricky than that, though. Of course, where unvaccinated employees are happy to pay for the tests themselves, there is unlikely to be an issue. It may also be possible for employers and unvaccinated employees to agree to a payment plan in terms of which the costs of the tests may be split between the parties. Where discord is created by requiring employees to pay for testing solely, employers should expect legal challenges. What is the position in the Consolidated Direction on Occupational Health and Safety in Certain Workplaces (“Consolidated “Consolidated Direction”)? Direction” The Consolidated Direction is not specific or prescriptive on the issue of payment for COVID-19 testing. In fact, it deals fairly cursorily with the topic. While this might indicate that an employer is free to approach accommodation as it deems fit, other considerations need to be taken into account, for example: •
The employer holds the primary obligation to provide a healthy and safe working environment; and • The Courts’ approach to an employer using cost considerations as a reason not to implement an accommodation. In respect of the latter, our Courts have set a high standard for employers when considering the accommodation of employees. For example, in Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Court was called on to review a CCMA commissioner’s decision
