Compulsory Vaccination
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The Covid 19 virus continues to mutate and spread with devastating effects. All economic sectors are affected. This has many negative consequences on employers in all industries, as high infection rates naturally show an increase in absenteeism.
In South Africa, the vaccination program has not yet achieved targeted daily numbers. This appears to be partly attributable to vaccination hesitancy.
Compulsory vaccinations are likely to be challenged on constitutional grounds and, if successful, will have negative consequences for the Covid19 vaccination program.
Employers are required to conduct a Covid19 risk analysis of potential workplace infection and, subject to certain conditions, may make vaccinations compulsory. A large construction site can be a potential ‘super spreader’ location with multiple employers and many employees all drawn from across the country. Contractors are likely to resist a requirement that their employees isolate for 14 days before being given access to the site. The alternative is to insist that all employees are vaccinated before being admitted onto the site. If this arrangement applies to contractors and visitors, then it is only fair that it applies equally to employees of the owner of the site.
Most private companies introducing these policies are relying on the Occupational Health and Safety Act, which requires employers to provide a working environment that is safe and without a health risk. The department of labour also issued a directive that supports the introduction of workplace vaccine mandates for employees who are at high risk for developing severe COVID-19 or at a high risk to transmit the virus.
The example of an operational requirement can easily be extrapolated to both large and small businesses. If an owner/manager of a small business has comorbidities, he/she may require all of his/her employees, with whom he/she has close contact, to be vaccinated. An elderly employer may insist on a caregiver that is vaccinated. The owner of a tourism establishment may want to advertise that all employees have been vaccinated in an effort to attract more customers. This is obviously not a closed list.
Whilst these examples are premised on operational requirements, they involve the right of admission. Lockdown restrictions have meant that many of us long to rekindle a sense of belonging that comes with attendance at a faith group, a sports event, a music festival and more. Can admission be limited to those who have a vaccination passport?
Some argue that making the COVID-19 vaccine compulsory would be a violation of constitutional rights, including the rights to bodily integrity, freedom of religion, and dignity. Although it is true that mandatory vaccination may limit these rights, it is important to recognize the principle that no constitutional right is absolute. This means that any right in the bill of rights can be limited if justified under section 36 of the Constitution. For example, if the prosecution needs an accused’s blood as evidence to support their case, the person’s right to bodily integrity can be limited and he or she can be compelled to have a blood sample drawn.
The idea of compulsory vaccines is not new. The EU may introduce a requirement for travelers from the United States to be vaccinated or to isolate for 14 days at their expense when entering countries in the EU. Pilots and aircrews will only be allowed to enter a foreign country if they have been vaccinated. On 2 September 2021, Discovery announced that COVID-19 vaccination will be mandatory for all staff from 1 January 2022. Adrian Gore, CEO of Discovery, explained that the decision was motivated by both a moral and a legal obligation to provide a safe working environment for their employees. Since Discovery’s announcement, a number of other organizations, including universities and private companies, have implemented similar policies, or are considering them.
While the law remains unsettled on the question of compulsory vaccines, we must debate these issues and be mindful of people’s views and opinions. However, ultimately we must look to the law to provide certainty on this topic.
Beauments Express – Volume 23 No.9 September 2021 page 208 – 209.
This article is for general information should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact an attorney for specific and detailed advice. Errors and omissions excepted (E&OE)
