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Despite the optimism that one of the most effective ways in which the Covid-19 pandemic will be controlled, is through vaccination to achieve herd immunity, the vaccination drive has been met with skepticism in some quarters. The worrying phenomena is that the quarter that holds skepticism is substantial within the population, thereby working against achieving herd immunity fast, or at all.

One of the factors that has driven skepticism is that, since the discovery of the COVID-19 virus, the world has been at speed to find a vaccine and treat the severe cases especially.

In the early stages of the vaccine development in 2020, the Food and Drug Administration (FDA) in the United States had to bypass some stages which normally would take up to 90 days, in order to make vaccines available as soon as possible. This raised a lot of distrust and lack of confidence in the end products in many other parts of the world, resulting in many people fearing to take the vaccine.

One of the foremost sectors that has been put on the back foot are employers, when their employees hold reservations towards vaccination. In South Africa, the hurdle that lies is constitutional mainly, amidst the concept of rule of law.  The Department of Labour has had to strike a balancing position in its regulatory authority, to cater for the employees’ rights on one hand, as well as to enable the employer to give effect to their workplace obligations as per the Occupational Health and Safety Act of 1993.

South Africa is a constitutional state that is awake to the democratic values of choice, freedom of conscience and equality. Its vaccination policy may not be seen to impede on these values that are protected by the highest law in the land, being the Constitution (Constitution of the Republic of South Africa, Act 108 of 1996).

Section 12 (2) of the Constitution

Section 12 (2) of the Constitution provides that,

(2) Everyone has the right to bodily and psychological integrity, which includes the right—

(a) to make decisions concerning reproduction;

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed consent.

Feeding further into the above is Section 15 which provides that, ‘Everyone has the right to freedom of conscience, religion, thought, belief and opinion.’

Despite the above, employers are still required to provide a safe working environment by the Occupational Health and Safety Act of 1993, which obligation feeds into the very purpose why vaccination is being driven in the first place. National lockdowns are not in favour of the economy, employees and employers as they affect everyone in much the same way because they put economic activity to a halt and thousands may be thrown out of jobs. Vaccination therefore, was mulled as a panacea to avoid lockdowns, whilst the workplace and employees are safe.

Whilst the National Economic Development and Labour Council (NEDLAC), which is a platform where business, labour and the government converge to inform and influence policy, announced that they will approach the Constitutional Court for a declaratory order in favour of businesses having mandatory vaccination policies in the workplace which may allow, employers to dismiss employees who would have chosen not to vaccinate without sound reasons, the Department of Labour currently requires that employers perform a risk assessment first in order to formulate their vaccination policy.

1. The employer must make an assessment based on its operational requirements, to see if mandatory vaccination should be enforced at all.
2. In the event that the risk assessment establishes that vaccination must be compulsory in the workplace, it must then identify which employees ought to be vaccinated looking at their risk profiles e.g risk of transmission, age, comorbidities etc.
3. Lastly the policy must then set out the implementation plans of the actual vaccination on the identified groups. 

The above is a guide for general purposes, and each workplace should amend its policy according to its own workplace requirements and any industry specifics.

Van Deventer & Van Deventer Inc. - Attorneys in Johannesburg and Cape Town

Until the Constitutional Court gives direction on the issue of vaccine mandates, employers are encouraged to steer clear from enforcing and dismissing employees who withhold consent to vaccinate without seeking legal advice. We assist with guiding employees and employers on labour and employment law.

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