Authors: - Musa Zimu – Candidate Attorney
*Supervised by: Veronica Vurgarellis – Director, Head of Commercial Litigation & Member of Management Board
It has been just over 19 months since the first positive COVID-19 case was identified and confirmed in South Africa.
We could never have imagined the devastation the virus would leave in its wake since patient zero was identified. The message from virologists and the WHO is and has always been clear: unless a substantial portion of the world’s population gets vaccinated against the virus, herd immunity will not be achieved, and its reign of terror will continue unabated.
Herd immunity looks different for different viruses. That's because the concept hinges on how easily a particular virus spreads from person to person. Because COVID-19 is a novel virus, experts have not yet been able to say with certainty what percentage of a country’s population needs to get vaccinated to achieve herd immunity, but estimates are that it will take at least 70% of the population — with some estimates ranging as high as 90%.
In a previous article (COVID-19: The legal basis for medical intervention against a person’s Will), we canvassed the constitutionality of medical intervention against a person’s will. At the time of publishing, vaccines had not yet been approved and the article was framed largely around the idea of mandatory COVID-19 testing. We dealt in depth with the section 12(2) constitutional right to bodily integrity and how that right could only be limited, like all rights enshrined in the Bill of Rights, through compliance with the stringent requirements imposed by the Constitution in section 36.
With vaccines being marketed as the silver bullet that will effectively put an end to our COVID-19 misery (at least medically), it has now become crucial that we explore the constitutionality and legality of mandatory vaccination.
The position of the government has in principle remained consistent and, in the words of the Minister of Health Joe Phahla, “very clear” – vaccination is encouraged but voluntary for the general population. This position is consonant with the constitutional right to physiological integrity, which includes the right to security in and control over one’s own body, and the right not to be subjected to medical or scientific experiments without one’s informed consent.
Several entities in the private sector, however, have implemented mandatory vaccination policies for their employees. No doubt, in an effort to ensure safety of all staff and resume normal business operations in attempts to recoup some of the devastating economic losses the lockdown has caused. Because of the unequal bargaining power between employers and employees, many who have felt strongly against taking the vaccine have acquiesced, without knowing what the exact legal position is. Whether their employers may lawfully take steps against them should they refuse, and what recourse or remedy they may have should such steps be unlawfully taken.
On 11 June 2021, the Minister of Employment and Labour, Thulas Nxesi, gazetted a directive on COVID-19 vaccination in certain workplaces, issued in terms of Regulation 4(10) of the regulations made under section 27(2) of the Disaster Management Act, 2002. The directive, in section 3(1)(a)(ii), stipulates that employers must undertake a risk assessment to determine whether they intend to “make vaccination mandatory”. This should be in accordance with sections 8 and 9 of the Occupational Health and Safety Act 85 of 1993 (OHSA),[4] and should take into account the operational requirements of the workplace.
Employers are obliged to 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”. Medical grounds for an employee not agreeing to take a vaccine as stated in annexure 3 of the directive are “an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccines”.
This means that on the face of it, it is not mandatory for employees to be vaccinated. The decision to make vaccination mandatory must be taken after the employer has completed a risk assessment exercise, in accordance with sections 8 and 9 of the Occupational Health and Safety Act 85 of 1993, and “taking into account the operational requirements of the workplace, or the risk of their employees of severe COVID-19 disease or death due to their age or comorbidities” (emphasis added).
Further, the employer must identify those employees who by virtue of their risk of transmission in the workplace must be vaccinated. It is not a foregone conclusion that once the employer has decided that due to its operational requirements vaccination is mandatory that every single employee must be vaccinated. A plain reading of this provision seems to mean that an employer may, following a risk assessment exercise, decide to mandate vaccination for its employees who have been identified as being at risk of severe disease or death, notwithstanding a low risk of transmission in the workplace.
Regulation 3(1)(b) obliges every employer, following the risk assessment exercise, to develop a plan or amend an existing plan outlining the measures the employer intends to make in respect of the vaccination of the employees and consult on such plan with any representative trade union and any health and safety committee. The regulations place several other obligations on the employer that for brevity reasons will not be covered here.
Regulation 3(4) states that in developing and implementing the plan mentioned above, an employer must take into account the rights of its employees to bodily integrity and freedom of religion, belief and opinion in terms of section 13 of the Constitution.
There is a delicate and trepidatious balancing of interests to be undertaken by employers when deciding on a vaccination policy. Though currently inchoate, we will no doubt see principles start to crystalise as our courts are confronted with litigation following the implementation of vaccination policies in the workplace. Not only is COVID-19 novel, but so too are all the issues incidental to it. They present an opportunity for robust legal and ethical debate that will inevitably lead to the further development of our law.
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