The legal concerns around mandatory vaccines in the SA workplace

Government is working hard to reach its target of vaccinating 67% of the country’s population by the end of this year. Many local companies have also instituted vaccine mandates for employees who want to return to the office. Ian McAlister, General Manager at CRS Technologies, discusses some of the legal issues surrounding this.

According to the SAcoronavirus.co.za portal, the opinion by the South African Human Rights Commission (SAHRC) seems to be that employee rights cannot be limited should they refuse to be vaccinated. “However,” says McAlister, “this viewpoint is strongly criticised by legal and other experts in the field, with some arguing that the SAHRC has missed the difference between contagion (the current pandemic) and infectious disease (such as that caused by HIV).”

Gazetting directions

In June, the employment and labour minister gazetted a directive on COVID-19 vaccination in certain workplaces. It stipulates that employers are required to produce reasonable resolutions so that all parties are accommodated should employees refuse COVID-19 vaccinations on medical and constitutional grounds. Much of this comes down to employees needing to treat each other with mutual respect despite their [often polarising] views on the vaccine. But fundamental to this gazetted directive are essential considerations when it comes to public health imperatives, employees’ constitutional rights, and efficient business operations.

The directive (in Section 3 of the Gazette) says that employers must undertake a risk assessment to determine whether they intend to “make vaccination mandatory”. Furthermore, this must be done in accordance with sections 8 and 9 of the Occupational Health and Safety Act No. 85 of 1993 (OHSA), meaning that companies must identify those employees who need to be vaccinated by “virtue of the risk of transmission through their work or their risk for severe COVID-19 disease or death due to their age or comorbidities”.

“While this might seem to not make the vaccine mandatory, it puts the onus on the employer to recognise its responsibilities under the OHSA,” says McAlister. “Some legal experts believe that it could be argued that, backed by scientific evidence and the rights of all people to a safe environment, it would be ‘reasonable and justifiable’ to compel workers in certain workplaces to take a vaccine.”

Human rights

The National Health Act No. 61 of 2003 (NHA) also refers to the importance of considering the rights of “the people of South Africa to an environment that is not harmful to their health or well-being”.

Therefore, in terms of the NHA, employees need to understand the implications and risks of refusing the vaccine where they are exposed to the risk of COVID-19 exposure and transmission. They also need to understand that they may be compelled to take the vaccine to reduce the threat of a serious risk to public health.

Successful vaccination programmes could play a critical role in establishing relative normality and the enjoyment of civil liberties. There could be a safe return to normal life and a gradual re-opening of the economy in key sectors such as food, retail, entertainment and travel.

“However, vaccine hesitancy due to distrust in the government, politicisation of the processes, the slowness in getting the vaccination rollout off the ground, reinfections despite being vaccinated, and dismal communication strategies to the public, has played a substantive role in decreased uptake. And while there is still a significant legal debate going on around vaccine mandate, there needs to be a balance between individual rights and the public good,” concludes McAlister.

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