SA companies may require staff to be vaccinated before returning to work – but it’s complicated

Business Insider SA

Covid-19 vaccination South Africa
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  • With a vaccine roll-out expected in mid-2021, South African companies are hoping to ensure they can return to business, and stay operational, through vaccinated employees.
  • But while the law demands that employers protect their employees against all workplace hazards, including the coronavirus, implementing a mandatory vaccination policy will not be easy, lawyers warn.
  • Workers can object to vaccinations for health and religious reasons.
  • Legal experts at Cliffe Dekker Hofmeyr predict a fierce constitutional showdown.
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Businesses exploring mandatory vaccination policies to ensure the health and safety of their workforces will need to tread carefully: although employers have an obligation to ensure a safe workspace, employees have the right to security and control over their bodies – and that tension could end up in the Constitutional Court.

The predicament has been analysed in detail by one of the country’s largest law firms, Cliffe Dekker Hofmeyr (CDH), as South Africa awaits the local rollout of a Covid-19 vaccine. With clinical trials entering advanced stages, and South Africa partnering with a global access initiative to secure supply, it seems likely that a vaccine will be administered, in a phased approach, midway through 2021.

While mandatory vaccinations may be rare, examples exist both in South Africa and abroad. As noted by CDH, compulsory yellow fever vaccinations are required when travelling to certain African and South American countries with high transmission rates. And while there’s no law enforcing the immunisation of children in South Africa, most public and private schools require proof that prospective pupils have been vaccinated.

But children can not be denied admission to such institutions if they are not vaccinate, because institutional codes are superseded by the Constitution, experts say.

As has been done by other nations in the past, within the context of diseases like smallpox and polio, the South African government may implement a mandatory vaccination policy for the coronavirus, but it too will need to satisfy constitutional requirements. In the meanwhile, or alternatively, companies – especially those that employ large workforces in confined spaces – are likely to investigate enforcing vaccination.

“The gist behind mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe working environment,” say CDH's Imraan Mahomed, Riola Kok and Rethabile Mochela.

Section 36 of the Constitution allows for individual rights to be limited for the greater good of the nation, as long as restrictions are reasonable,

But South Africa’s Bill of Rights allows employees to object on several grounds. An employee may refuse to accept the vaccine for medical reasons, if its proven to have harmful side effects or if irrefutable scientific evidence points to immunity through exposure when the person has already tested positive for Covid-19.

See also | How and where to get tested for Covid-19 in South Africa

Young employees, with no co-morbidities, who have been advised against getting vaccinated by their physicians may also object.

“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,” says CDH.

If an administered vaccine has negative health effects, whether in the short or long term, employers who have authorised a mandatory programme are at real risk of legal liability.Employers have also been urged to take careful note of the Protection of Personal Information Act (POPIA), which regards private medical information, including a history of vaccinations, as confidential. On this basis, employees may object to answering certain vaccine-related questions, forcing and employer to apply for consent.

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