Authors: Nombulelo Myeni – Associate
Regulation 4(10) of the regulations under section 27(2) of the Disaster Management Act, 2002 legislates the implementation of mandatory vaccinations in the workplace, due to the employer’s operational requirements and the environment in which employees operate. Accordingly, employers can stipulate that vaccination is mandatory, subject to meeting the requirements of the regulations.
Who then bears the risk if an employer makes vaccination mandatory, and an employee suffers side effects or death as a result of the vaccination? On 22 October 2021, the Compensation Commissioner gazetted a directive on the Compensation Fund that is set to cover employees for injuries, illness, or death following vaccination under the Compensation of Occupational Diseases & Injuries Act 130 of 1993 (COIDA).
The directive provides that where an employee is required by the employer to receive the vaccination as an inherent requirement of employment or where vaccination is required based on the Occupational Health & Safety risk assessment conducted by the employer, that employee will be eligible for compensation should they die or are made ill by the vaccine.
The requirements for compensation include that:
The vaccination must be regarded as an inherent requirement of the job as determined by the employer’s risk assessment.
The vaccine needs to be a SAHPRA-approved COVID-19 vaccine.
The employer’s Risk Assessment and Vaccination Plan should be in place.
Employees must have presented with symptoms and clinical signs that are generally recognised as side effects of COVID-19 vaccines.
Employees with legitimate claims arising from vaccinations on the behest of their employers must follow the following steps to lodge compensation claims with COIDA:
Give written or verbal notice of their illness or severe side effects to their employer. In the case of death, the employer must be notified.
The official claim form (form W.CI 2 – Notice of Accident & Claim for Compensation) must be completed.
The employer must submit the W.CI 2 form to the Compensation Commissioner within seven days.
The Compensation Commissioner, after receiving and registering the claim, will advise the employer of the claim number and the relevant supporting documents to be submitted (ie, the employee’s medical reports, the incident report, etc).
After considering the claim, the Compensation Commissioner will advise the employer whether the liability is accepted for payment of the claim.
If the employee is not satisfied with the decision of the Compensation Commissioner, they may appeal the decision within 90 days.
Accordingly, employers can proceed to implement mandatory vaccinations in the workplace with the assurance that they will not be held directly liable for any damages suffered by employees as a result.
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