With the imminent arrival of South Africa's first batch of Covid-19 vaccines, many employers are considering the workplace Covid-19 vaccination policies they need to put in place. We caution against employers implementing a mandatory policy requiring all employees to be vaccinated.
Vaccination legislation
Before Covid-19, vaccines were primarily necessary at birth to prevent life-threatening infectious diseases that have high mortality in children (for example, measles). Although the Department of Health strongly encourages parents to ensure that children are vaccinated, these vaccinations are not compulsory under the law.
After Covid-19, and with the rollout of various Covid-19 vaccines, an important question is whether South Africa has legislation which makes vaccination compulsory. Although yellow fever vaccinations are compulsory for travel to certain countries, there is currently no legislation in South Africa which makes vaccination compulsory. Given the latest announcements by the Minister of Health, we consider it unlikely that the South African government will enforce a compulsory vaccination regime for citizens.
It is within this context that employers need to consider workplace Covid-19 vaccination policies.
Health & safety obligations on employers
Employers have a legal obligation to provide and maintain (as far as reasonably practicable) a safe and healthy working environment for employees. Despite this obligation, South African law currently does not impose any legal duty or obligation on employers to provide or enforce compulsory vaccination for employees.
Employer considerations
Employers who seek to enforce a compulsory vaccination regime for employees should consider the following important aspects.
Constitutional rights of employees
Obliging employees to be vaccinated may limit one or more fundamental rights contained in the Constitution, particularly section 12 (freedom and security of the person) and section 15 (freedom of religion, belief and opinion). Although it is possible for these rights to be limited, that limitation has to be reasonable and justifiable and various factors must be considered:
- The nature of the right
- The importance and purpose of the limitation
- The nature and extent of the limitation
- The relationship between the limitation and its purpose
- Less restrictive ways of achieving the same purpose.
However, it may be possible for employers to argue that section 11 (right to life) and section 24 (right to an environment that is not harmful to health or well-being) can be used to support a compulsory vaccination regime for employees.
Due to the interplay of constitutional rights involved, the issue of workplace Covid-19 vaccination policies may ultimately end up before the Constitutional Court for determination. This determination will involve a balancing exercise, with employer obligations and responsibilities towards employees on the one hand and employee rights on the other.
Apart from the constitutional rights of employees, employers should also bear in mind certain sections of relevant employment-related legislation such as:
- Section 187(1)(f) of the Labour Relations Act 66 of 1995, which deals with automatically unfair dismissals on account of discrimination (including on religious, conscience, belief, political opinion, cultural or arbitrary grounds);
- Sections 5 and 6 of the Employment Equity Act 55 of 1995, which offer similar protection to employees against unfair discrimination by employers.
Practical implementation and costs
From a practical perspective, it should be noted that the South African government is currently the sole procurer and distributor of Covid-19 vaccines. It will therefore not be possible for employers to launch an on-site vaccination drive at the workplace. Accordingly, at this time mandatory vaccination is a non-starter.
The other issue is the costs associated with the vaccine. Once the vaccines are more easily available to the public, if an employer requires employees to be vaccinated before return to the workplace, it will have to cover the costs of procuring and administering those vaccines.
Employers should also be aware that a compulsory vaccination regime for employees will involve a consideration of various other additional issues, including but not limited to:
- Changes to terms and conditions of employment and reaching agreement with employees on those changes
- Personal information management of vaccination records/history submitted by employees
- Reputation management issues (eg employers who employ large workforces and do not seek to make vaccination compulsory may face public criticism for failing to do so).
Workplace Covid-19 vaccination policies involve several legal considerations. There is a need to balance various competing rights and interests. It is therefore advisable for employers who are contemplating the implementation of a compulsory vaccination programme to seek legal advice on whether it would be permissible to do so.
