Legal Business
South Africa: Guidance issued on mandatory vaccination policies for the workplace
Image: WHO
South Africa: After months of speculation, the Department of Employment and Labour in South Africa has provided guidance in relation to vaccination policies within the workplace. On 11 June 2021, the Minister published an amendment to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive), which makes provision for employers to implement a mandatory vaccination policy in its workplace.
Implementing the policy
Before an employer implements such a policy, it must undertake a risk assessment within 21 days of the Directive being published, i.e. by 2 July 2021. This risk assessment must:
• take into consideration the employer’s operational requirements;
• indicate whether it intends to implement a mandatory vaccination policy;
• identify which employees it will require to be vaccinated based on the risk of acquiring COVID-19 at work, or the risk of severe COVID-19 symptoms due to the employee’s age or co-morbidities; and
• be conducted in accordance with section 8 and 9 of the Occupational Health and Safety Act, which places a duty on the employer to maintain a working environment for its employees and other persons that is safe and, as far as reasonably practicable, free from health risks.
Developing a plan
The employer must then develop a plan which sets out the measures it will implement to ensure the workplace is safe for its employees. This plan should indicate whether the employer intends to make the vaccine mandatory for any employees, and must identity the employees who will be required to be vaccinated, the process which will be followed to ensure compliance with the Directive and whether the employer plans to make the vaccine mandatory as and when it becomes available to employees. Any employer who is of the opinion that the vaccination of its employees is necessary for their health and safety may implement a mandatory vaccination policy. The employer’s risk assessment should, however, support this requirement and indicate that there is a legitimate need for the workforce to be vaccinated.
Right to refuse
The Directive sets out guidelines to employers when drafting and implementing a mandatory vaccination policy. In terms of the guidelines, importance is placed on “public health, the constitutional rights of employees and the efficient operation of the employer’s business.” Where an employer makes vaccination mandatory, it must notify each employee identified in the plan that such employee must be vaccinated as and when the vaccination is available to them, and that the employee may consult with a health and safety worker or trade union representative, should the employee wish to do so. Further, the employer must inform the employee of their right to refuse the vaccine on medical or constitutional grounds. These grounds are specified in the guidelines and makes provision for an employee to refuse the vaccine on the medical basis of a “contra‑indication” of the vaccine (i.e. an allergic reaction to the first dose of the vaccine or to a component of the vaccine), or the constitutional basis of the employee’s right to bodily integrity and/or right to freedom of conscience, religion, thought, belief and opinion, as set out in section 12 and 15 of the Constitution.
The Directive prescribes that where an employee does raise one of these objections, the employer is required to counsel the employee, refer such an employee for a medical evaluation for any allergic reaction to the vaccine and, where necessary, reasonably accommodate the employee in accordance with the Code of Good Practice: Employment of People with Disabilities, as published in terms of the Employment Equity Act. Such reasonable accommodation may include allowing the employee to work offsite, at home, in isolation at the workplace, or in limited circumstance, the employer may require the employee to work with a N95 mask.
Where an employer does implement a mandatory vaccination policy and an employee refuses to be vaccinated, the employer must ensure that the grounds for refusal are considered fully and that the employee is consulted in relation to the grounds raised. However, should the employer be unable to reasonably accommodate the employee and the employee continues to refuse to be vaccinated, an incapacity procedure must be followed before the employer may terminate the employee’s contract.
Paid time off
In terms of section 4(1)(k) of the Directive, employers must give employees paid time off at the date and time of their vaccination, regardless of whether such vaccination is in terms of a vaccination policy or not, and sick leave must be used should an employee experience any adverse side effects from the vaccine. An employer may request proof of the vaccination when returning to work, or proof that the vaccination will take place during working hours. Where an employee is vaccinated in terms of the mandatory vaccination plan, the employer must afford the employee paid time off for adverse side effects of the vaccine, even if the employee has exhausted their sick leave entitlement. Alternatively, the employer may lodge a claim with the Compensation Fund, in terms of the Compensation for Occupational Injuries and Diseases Act. In addition, the employer should organize transport to and from the vaccination site, if possible, for employees identified in the mandatory vaccination policy.
Next steps
In order to comply with the Directive, employers must update their risk assessment of the workplace, taking into consideration any employees who are required to be vaccinated. Employers must take notice of the timeframe afforded by the Directive and ensure that the plan is in place before the 21 day period has lapsed. It is important for employers to conduct the risk assessment objectively and determine the actual need for vaccinations in the workplace and amongst certain categories of employees. Further, any objection raised by an employee should be considered seriously and the employer should try to accommodate such employee where possible. However, the employer may dismiss the employee for incapacity as a last resort.
By Kirsty Gibson, Associate, and Johan Botes, Partner and Head of the Employment & Compensation Practice, Baker McKenzie Johannesburg
Photo Credits: Tonkin Clacey Inc
In the complex and intricate world of law, where every case is a story waiting to be told, the wisdom passed down from seasoned legal professionals holds immeasurable value. Within the hallowed halls of law firms and legal institutions, an age-old tradition persists-one that transcends formal training and case law. It’s the tradition of fireside chats, where senior legal practitioners weave narratives of their experiences, trials, and triumphs, igniting the flames of inspiration in the hearts of their junior counterparts.
In these intimate gatherings, the rigid walls of hierarchy crumble, and the barriers between senior and junior practitioners’ dissolve. Here, amidst the flickering glow of the fire, stories untold-stories of courtroom battles won and lost, negotiations that sealed deals or unraveled, and ethical dilemmas faced with unwavering resolve. Through these stories, senior legal practitioners impart not just legal knowledge but invaluable lessons from the trenches of practice.
For junior practitioners, these fireside chats serve as a beacon of guidance, illuminating the path ahead with the collective wisdom of those who’ve walked it before. They chats provide insights that textbooks can’t convey, painting a vivid picture of the complexities and nuances of legal practice. From navigating tricky client interactions to finding creative solutions to legal challenges, the stories shared in these informal gatherings offer a treasure trove of practical advice.
Moreover, fireside chats help to build a sense of fellowship and community within the legal profession. They create spaces where junior practitioners feel seen, heard, and valued—not just as legal novices, but as aspiring storytellers in their own right. Through the exchange of anecdotes and experiences, bonds are forged, mentorship relationships blossom, and a culture of continuous learning thrives.
Most importantly, these chats have the power to shape the trajectory of junior practitioners’ careers. By exposing them to diverse perspectives and real-world scenarios, these informal gatherings expand their horizons, instilling in them the confidence to navigate the complexities of the legal landscape. They inspire them to dream bigger, reach higher, and aspire to leave their own indelible mark on the legal profession.
Photo Credits: Baker McKenzie
In a profession where the stakes are high, and the journey is fraught with challenges, storytelling becomes a guiding light—a compass that points towards excellence, integrity, and justice. The Advancing Women in the Workplace (AWW) program- a program to support women in leadership in South Africa adopted this approach of storytelling as a model. So, let us gather around, dear practitioners, and share our stories. For in the flicker of the flames lies the power to shape not just individual careers, but the future of the legal profession itself.
Acknowledgements
The AWW program, a program sponsored by Vance Centre in partnership with the South African Legal Fellows Network and the US mission.
Written by: Adaobi Adaobi Egboka and Dr Kim Lamont-Mbawuli. Africa Program Director, Cyrus R. Vance Center for International Justice, Vance Center Consultant and Director of KLM attorneys.
Data privacy, defined by Tech target is a discipline intended to keep data safe against improper access, theft or loss. One of the triads of cybersecurity is confidentiality and this has to do with data privacy. The world has become a global village and data privacy issues are now more relevant than they ever were before.
In 2009, a popular brand in America had a serious breach of its systems. For 18 months, hackers had access to the brand’s data and were able to get customers credit card details and personally identifiable information undetected. How did this happen? and how can you make sure that this doesn’t happen to your organization? The answer is simple, you need to pay attention to data privacy. As long as your business collects personal identifiable information, your business has a duty to protect the confidentiality of the people who have given you that information.
Sometimes, the obligation to protect data is beyond a moral right. In Europe for example, you have the GDPR (General Data Protection Regulation), in America you have applicable laws like Health Insurance Portability and Accountability Act of 1996 (HIPAA) which demand data privacy. In Nigeria, privacy rights draw from the Constitution of the Federal Republic of Nigeria (1999) (as amended) and can also be found in the Nigerian Data Protection Regulation, 2019.
All these laws show you that as a business owner, you are not only expected to protect data, you are under an obligation by law in some cases to protect certain types of data. The question is, how do you protect data and ensure that the privacy rights of your customers are respected?
- Employ a CISO: You should consider employing a Chief Information Security Officer (CISO) if your organization is large, who would be in charge of formulating policies to protect data privacy as well as other valuable data in your organization. Actions like these can prevent competitors from getting valuable data from your company, ensure your company complies with relevant laws on data privacy and thus win customers’ confidence in your brand.
- Implement good information security policies and procedures: You would also need to create good policies on information security. Ensure documents with sensitive data on customers are password protected, ensure that firewalls and anti-malware software are installed to fight off malicious cyber-attacks aimed at stealing customer data and create trainings for staff handling sensitive data.
- Don’t collect data you don’t need: Where you don’t need to collect customer data, don’t do it. Only ask customers to give you the information relevant to the service you are providing for them.
- Don’t keep data longer than you need it: Where you don’t need data anymore, and no law requires that you keep it, destroy it. Where a customer has indicated that they want their account deleted, or they don’t want to share their data with your company anymore, ensure that the data is destroyed.
- Properly destroy data that is no longer useful to you: The same way you receive data through a process, you need to understand that destroying data is also a process. Data is not destroyed simply because you put it in the recycle bin and deleted it from the recycle bin. Ensure that data is properly destroyed when it’s no longer useful.
At the end of the day, data privacy is important for businesses in the world today. I hope these tips would help you choose to take steps to protect your customers data in every part of your business and ensure the data privacy rights of your customers are respected.
Article by: Morenike George-Taylor CDMP, County Support Director & Data Governance Expert
Tax image credit: Getty
The Kenyan Government, in its latest Finance Act 2022, has enacted some key changes in the area of direct tax, including an important update on the country-by-country (CbC) reporting threshold for multinational companies.
What is country-by-country reporting?
Corporates and connected persons, such as groups of companies and multinational entities (MNEs) usually face complex compliance risks. To address the potential gaps and mismatches in various tax systems globally, the Organization for Economic Co-operation and Development (OECD) introduced Action 13 CbC reporting as part of its Base Erosion and Profit Shifting (BEPS) Action Plan. Under BEPS Action 13, MNEs are required to prepare a CbC report with aggregate data on the allocation of income, profit, taxes paid and economic activity amongst all the jurisdictions in which they operate. This report must be shared with the tax administrations in these jurisdictions, for use in high-level transfer pricing and BEPS risk assessments. Part of the solution provided by Action 13 is to require countries to adopt legislation dealing with the filing of CbC reports in their jurisdiction.
Finance Act 2022 updates of CbC
The Kenyan Government has introduced a threshold for CbC reporting with the effect from 1 January 2023. The threshold introduced in the Finance Act is for companies with gross revenues of KES 95 billion (EUR 790 million approximately) or more, including extraordinary and investment income. From 1 January 2023, a parent entity or a constituent entity of a MNE group that is tax resident in Kenya, and that has a gross turnover of over KES 95 billion, will be required to file a CbC report of its financial and economic activities in Kenya, as well as all other jurisdictions in which the MNE has a taxable presence.
The report must contain all information of the group’s aggregate revenue, profit or losses before tax, income tax paid, income tax accrued, accumulated earnings, number of employees, tangible and intangible assets, cash and cash equivalents and any other information as requested by the Kenya Revenue Authority (KRA).
Information to be contained in the master and local bundle.
The Finance Act requires a master file that must contain the following:
- A detailed overview of the group and the group’s growth engines.
- A description of the supply chain of the key products and services.
- The group’s research and development policy.
- A description of each constituent entity’s contribution to value creation.
- Information about intangible assets and the group intercompany agreements associated with them.
- Information on any transfer of intangible assets within the group during the tax period, including the identity of the constituent entities involved, the countries in which those intangible assets are registered and the consideration paid as part of the transfer.
- Information about financing activities of the group.
- The consolidated financial statements of the group.
- Tax rulings made in respect of the group.
- Any other information requested by the KRA.
The local file must contain:
- Details and information of the resident constituent activities within the multinational enterprise group.
- The management structure of the resident constituent entity.
- Business strategies, including structuring, description of the material-controlled transaction, the resident. constituent entity’s business and competitive environment.
- International transactions concluded by the resident constituent entity.
- Amounts received by the entity.
- Any other information requested.
Exceptions to the CbC report filing requirement
The Finance Act provides certain exceptions to the filing requirements for a resident constituent entity of an MNE group. If a non-resident surrogate parent entity already files a CbC report for the group with the tax authorities of its tax jurisdiction, the jurisdiction in which the non-resident surrogate parent entity is resident requires a CbC report in terms of its domestic legislation, under the following conditions:
- The tax authorities of the jurisdiction where the non-resident surrogate parent entity have an exchange of information agreement with the KRA.
- The tax authority in the jurisdiction where the non-resident surrogate parent is resident has not notified the KRA of a systematic failure.
- The non-resident parent entity has notified the competent authority in the jurisdiction of its tax residence and that the entity is the designated surrogate parent entity of the group.
Concluding remarks
The reporting requirements brought by the Finance Act 2022 are consistent with the OECD’s BEPS Action Plan 13 guidelines and the three-tiered documentation approach, which is relevant to the reporting of related-party transactions and aligns with the four minimum standards under the OECD’s BEPS project.
It is important for parent entities of MNEs operating in Kenya to note the additional compliance burden which is imposed by this new legislative update. Multinationals that would be affected by the new legislative update should review their current transfer pricing documentation and compliance processes to ensure that they are in line with the new reporting requirements under the Finance Act 2022, by 1 January 2023. Failure to comply with the CbC reporting requirements will be an offense in Kenya and subject to a fine not exceeding KES 1 million (EUR 8200 approximately), a prison term not exceeding three years, or both, upon conviction.
By: Francis Mayebe, Candidate Attorney, overseen by Virusha Subban, Partner and Head of the Tax Practice, Baker McKenzie Johannesburg
