The Covid-19 vaccine race culminated with the much-anticipated rollout of a vaccine in the United Kingdom and Bahrain in the first week of December.
This is against the backdrop of 173 potential vaccines which continue to be developed worldwide and at different stages of their individual processes, says law firm Cliffe Dekker Hofmeyr.
While it is not certain as to when a vaccine will become available in South Africa, there are already questions about the position of businesses in the absence of a law which mandates the inoculation of the entire population against Covid-19.
Cliffe Dekker Hofmeyr said that the following questions have been raised:
- Should employers consider implementing a mandatory vaccination policy?
- How does an employer deal with employees or applicants for employment who refuse to be vaccinated?
- Are personal beliefs regarding vaccinations, i.e. veganism and the like, a legitimate ground for an employee to refuse to comply with a mandatory vaccination policy?
“At this stage, save for yellow fever vaccinations in specified international travel, South Africa does not have a policy of compulsory vaccination,” the legal firm said.
“The vaccination schedule prescribed for children is only encouraged by the Department of Health, and there is no legal requirement for parents to ensure children receive the requisite vaccinations prescribed.”
However, the firm noted that a refusal to submit children to vaccinations may create practical impediments in light of the regulations which concern school immunisation. Surprisingly, these have not as yet been tested in court, it said.
A mandatory employer vaccination policy will accordingly be considered against the backdrop of the Constitution, Cliffe Dekker Hofmeyr said.
Section 12(2) of the Constitution for instance provides that: ‘everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body.’
Patient autonomy is not, however, absolute, as the Constitution permits limitation of rights in terms of a law of general application and only to the extent that it is reasonable and justifiable in an open democratic society based on human dignity, equality and freedom, the firm said.
“The Constitution also protects the right to religion, belief and opinion as well as the right to life. These rights must then be balanced against the disastrous effects of Covid-19 as a global pandemic.”
“Like other countries, South Africa plans to adopt a phased approach to the adoption of a vaccination once it has been procured.
“Stage one would see health workers prioritised and immunised, they would be followed by the elderly. Stage two will see 11% to 20% of the population vaccinated where people with comorbidities and high priority teachers will get the shot.
“In stage three, up to 50% of the population will be immunised, including other essential workers.”
Like all other vaccines, including those formulated to combat the common flu, the Covid-19 vaccination is likely to be met with both suspicion and opposition, Cliffe Dekker Hofmeyr said.
One of the greatest impediments to the eradication of polio in Africa, for instance, was the association of vaccines with many traditional or cultural superstitions, including an inherent distrust for western medicine in a newly decolonising continent.
“While the Covid-19 vaccine will be introduced in very different circumstances, general cultural and even religious opposition to vaccinations still exist across the globe.
“Anti-vaccine campaigners argue that vaccines cause adverse effects beyond the known vaccine-related risks and legitimate objections. Added to this is the speed at which the Covid-19 vaccines have come to the market.”
Cliffe Dekker Hofmeyr said that employees who subscribe to an anti-vaccine ideology are likely to resist mandatory vaccinations in the workplace in three general categories:
- Medical reasons: employees in high-risk categories who may suffer adverse effects from a vaccine or those having a compromised immune system where there is no science to the contrary or employees who have showed no sign of the virus over the period of the pandemic;
- Safety concerns: employees who are relatively younger and thus do not require a vaccine on the advice of their primary care physician;
Religious: cultural or philosophical objections.
“Employees may also object to being vaccinated on the basis that the vaccines may include substances such as swine, whose consumption is prohibited for religious reasons.”
What the law says
In the South African context, an employer has an obligation to ensure a safe workplace, Cliffe Dekker Hofmeyr said.
Section 36 of the Constitution provides for a limitation of constitutional rights. The limitation of rights is to be considered taking into account several factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and the availability of less restrictive means to achieve the limitation’s purpose.
“The right to bodily integrity can therefore be limited, provided such limitation complies with the constitutional requirements and the limitation is not overbearing.”
The firm said that these issues will become relevant to employers where the state does not implement a mandatory Covid -19 vaccination law.
“The May 2020 decision of the Labour Court in Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy and Others was hailed as a significant victory for employees in the mining industry at the early stages of the initial lockdown.
“It was accepted in the AMCU matter that there was a need for detailed, binding national standards to guide employers and protect mineworkers against the hazards presented by Covid-19 upon their return to work in the mining industry post the hard lockdown – this was in the face of the state refusing to adopt such approach.”
Cliffe Dekker Hofmeyr said that employers could also be liable for mandating employees to be vaccinated who later become ill as a direct result of taking the vaccine.
“Employers ought to also have appropriate data storage facilities to manage confidential employee records. This implicates the Protection of Personal Information Act.
“It also remains unclear on whether the state or private medical insurers will subsidise the cost of the vaccine? If not, will the employer incur the expense where it is mandatory at its insistence?
“A company’s Health and Safety Committee will also be central to developing any mandatory policy and so will consultation with trade unions.”
Case by case basis
The firm said that ultimately every employer must determine the necessity of implementing a mandatory Covid-19 vaccine policy for its workplace where there is no law of general application.
In some cases, such as worksites where employees can safely social distance during regular work duties, it may be beneficial to encourage vaccination but not require one as the most effective vaccination programs are by consent, not by compulsion.
“The gist behind mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe working environment.
“When considering whether to implement a mandatory vaccination policy employers must have regard to the following factors”:
- The viability of continued remote work;
- The number of vulnerable employees in the workplace;
- The effectiveness of additional PPE where necessary;
- Temporary alternative placements;
- The employees exposure to the public and
- The number of employees with religious and/or medical grounds for objection.
“The requirement for such a policy should be determined on a case by case basis and the objections of employees or potential employees must also be duly considered with regard to the requirement to balance various rights.
“Employers must ensure that their records of infected employees are kept updated as this is a factor to also be taken into account.”
Commentary by Imraan Mahomed (director), Riola Kok (professional support lawyer) and Rethabile Mochela (candidate attorney) of Cliffe Dekker Hofmeyr.