Can you be mandated by your employer to get vaccinated?

And if you are injured by the vaccine, can you sue your employer?

By Ciaran Ryan, for DearSA. Scroll down to view or download the legal opinion.

With more than 12.5 million vaccines administered to 9.4 million South Africans as of 30 August 2021, that’s about 16% of the total population. Compare that with United Arab Emirates (76%), Uruguay (72%) or Malta (82%).

The Department of Health shows 23.7% of the adult population has been vaccinated, but it’s now clear we’re in for a tough haul to get anywhere near the likes of UAE or Uruguay. There’s obvious hesitancy among segments of the population who are determined at all costs to avoid the jab.

Government stats show women (58.15%) are more likely to get the jab than men (41.85%).

The Western Cape has the highest percentage of vaccinated (30%) and Mpumalanga (16.7%) the lowest.

Government’s public health response to Covid is almost entirely invested in the vaccines manufactured by Pfizer, accounting for 6.6 million jabs so far, and Johnson & Johnson, with less than half that.

Companies are now about to mandate vaccines for staff. How did we get here so fast, considering President Cyril Ramaphosa’s address to the nation in February this year?

Said Ramaphosa: “It is in the best interests of all that as many of us receive the vaccine as possible, but I want to be clear: nobody will be forced to take this vaccine. I want to repeat: nobody will be forced to take this vaccine. Nobody will be forbidden from travelling to wherever they want to travel to, including from enrolling at school or from taking part in any public activity if they have not been vaccinated. Nobody will be given this vaccine against their will, nor will the vaccine be administered in secret or in some dark corners. Any rumours to this effect are both false and dangerous and we would like those who are spreading these rumours to stop.”

Dear South Africa commissioned law firm Hurter Spies to provide a legal opinion the constitutionality of mandatory workplace vaccinations against Covid-19. In SA and abroad, opinions vary as to the legality of vaccine mandates, though there is an emerging consensus that some form of balance has to be achieved when weighing up an employer’s obligation to provide a safe and secure working environment by deciding whether to enforce a mandatory vaccination policy viz-a-viz an individual’s rights as enshrined in the Constitution. “These affected rights include the right to freedom and security of the person, which includes the right to bodily integrity, as well as the right to freedom of religion, belief and opinion,” says Hurter Spies.

On 11 June 2021, the Department of Employment and Labour issued a directive which expressly permits an employer to implement a mandatory vaccination policy subject to certain guidelines. The workplace plan must be amended to indicate whether the vaccinations will be made mandatory; which categories of employees are to be vaccinated; the manner in which the company will adhere to the Department’s directive; measures to be taken to implement the programme when vaccines becomes available and allowing paid time off for employees to be vaccinated.

Vaccines in the workplace are not compulsory in law

“From the directive it is evident that vaccinations in the workplace are not compulsory through law but rather that it may be allowed subject to the conditions of the directive,” says Hurter Spies.

The issue of vaccine mandates falls under a host of laws, including:
· the Constitution
· Basic Conditions of Employment Act
· Disaster Management Act
· Employment Equity Act
· Labour Relations Act
· National Health Act
· Occupational Health and Safety Act.

Medical testing in the workplace is permitted under the Employment Equity Act, but there is no law regulating medical treatment or immunisation in the workplace.

The key Constitutional protection is outlined in Section 12(2), which states that everyone has the right to bodily and psychological integrity, including the right “not to be subject to medical or scientific experiments without their informed consent.”

Hurter Spies says a plain reading of this makes it clear that each person has the right to make decisions on health, medical interventions and treatment, and that includes the acceptance or rejection of the vaccine.

Section 15(1) of the Constitution protects the right to freedom of conscience, religion, thought, belief and opinion.

Anyone who believes that mandatory vaccines will infringe their strongly-held beliefs, whether these beliefs are derived from religious observance or otherwise, is likewise protected in refusing the vaccine.

Section 36 of the Constitution, however, makes provision for the limitation of these rights where “reasonable” and “justifiable”.

Our courts have not yet had the opportunity to decide on the issue of compulsory vaccinations, but it has previously compelled treatments against someone’s will. In one instance, the matter of public interest was cited as reason to compel a respondent to undergo surgery against his will.

This is where the balance of legal rights will have to be weighed. There may be cases where an individual’s right to refuse vaccination clashes with the rights of co-workers and the employer. “Vaccinated employees may raise that their constitutional right to life is being compromised by working with employees who object / refuse to being vaccinated. This constitutional legal question is therefore complex and uncertain without any guiding court precedence,” says Hurter Spies.

Unfair dismissal

What about the Labour Relations Act (LRA) and the question of unfair dismissal over one’s refusal to get vaccinated?

The LRA prohibits dismissal over religion, conscience, belief, political opinion or culture. Certain religions may prohibit immunisation, or may contain ingredients that are prohibited in certain faiths. Here again, the Supreme Court of Appeal has held that religious and personal beliefs may be trumped by to an employer’s legitimate operational requirements or its occupational health and safety obligations.

While employers have an obligation to protect employees and maintain a healthy and safe working environment, when considering mandatory vaccine policies, they will have to consider the following:

• 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 employee’s exposure to the public; and
• The number of employees with religious and/or medical grounds for objection.

You cannot, therefore, be dismissed simply for refusing the vaccine. Your employer must consider whether other measures such as remote working or personal protective equipment or alternative assignments can be implemented.

Informed consent

The National Health Act prohibits health services being provided without informed consent, with only a few, narrow exceptions.

It is therefore essential that an employer planning to implement mandatory workplace vaccinations must notify affected employees of their right to refuse vaccination on constitutional or medical grounds.

Where an employee refuses the vaccination, the employer should counsel the employee (and allow them to consult a trade union representative or health and safety representative); refer the employee for further medical observation (again with informed consent); and, if necessary, take reasonable steps to accommodate the employee by amending their role or work environment.

No compulsion

Employers may (this is not obligatory) enact a policy of mandatory vaccinations, but that process must be accompanied by a thorough consultation process and must respect the rights of employees.

An employee must consent to be vaccinated, and employers planning a mandatory vaccination programme must inform their employees of their right to refuse.

“An employee may not summarily be dismissed for refusing to be vaccinated. Instead, reasonable steps must be taken by the employer to accommodate a refusing employee,” says Hurter Spies.

Legal challenges

Employers find themselves in a legal bind – the decision to mandate vaccination or not, both carry serious legal consequences.

“In the absence of legal precedent, mandatory vaccination policies should be approached with caution, complete transparency and willingness to engage,” concludes Hurter Spies.