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
Dear South Africa commissioned law firm Hurter Spies to provide a legal opinion on 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 that 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 become available and allowing paid time off for employees to be vaccinated.
“From the directive, it is evident that vaccinations in the workplace are not compulsory through the 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 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 a 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.