Legal Articles

It is evident from the daily numbers that South Africa is now in the third wave of infections, with government intensifying efforts to have the most people vaccinated as soon as possible starting with those most at risk.  

Amongst key challenges is balancing economic activity on one hand, while ensuring that the pandemic is kept under control. In this vein, the measures in place as announced by government right from the beginning of the Lockdown Restrictions in March 2020 have had one underlying factor, that all services and economic activity which can be executed remotely, be encouraged to do so.

Are mandatory vaccinations in the workplace a possibility in South Africa?

Informed Consent for COVID-19 Vaccine in South Africa

Despite the above there are indeed industries which by no means can operate remotely and some of them are crucial to the heartbeat of the economy.

In rolling out the vaccination programme, it is these industries where a lot of questions have been posed with regards to whether all employees will be forced to take the vaccine and whether one can be dismissed in the event that they withhold consent to take the vaccine.

Under the auspices of NEDLAC, an agreement was reached between the Labour Department and the business community that companies may be able to come up with COVID-19 vaccination policies in order to enhance government efforts in vaccinating the population whilst ensuring business continuity.

Under this agreement, the policies may become compulsory in future resulting in employees having to present valid reasons why they will not take the vaccine. The grounds for refusal may flow directly from the Constitution (religion, bodily integrity, culture) or any other acceptable and valid reason. 

While respecting individual’s rights as enshrined in the constitution, employers also have a responsibility to ensure and provide a safe working environment to all employees, and not put those who choose to take the vaccine at risk by working side by side with those who withhold their consent.

In balancing such a scenario, employers are encouraged to find alternative options to achieve such balance. Measures that may be considered include;

1. Finding alternative roles for those who refuse to take the vaccine;
2. Increasing social distancing protocols between employees;

• Providing better and stronger PPE to reduce any chance of transmission;

1. Have separate sections/branches for employees who refuse to take the vaccine.

Workplace Vaccination Policies South Africa

In these envisaged workplace vaccination policies, employees at higher risk of infection must be identified and administered preferentially whereas those who experience symptoms must report and isolate as soon as possible.

It is not encouraged that employees who refuse to take the vaccine be dismissed but should there be no alternative other than dismissal, we encourage employers to seek legal advice first.

Van Deventer & Van Deventer Attorneys – Labour Law Attorneys South Africa

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