According to recent reports in respect of South Africa’s planned national roll-out of the coronavirus (“COVID-19”) vaccine, it was widely anticipated that the country was due to receive its first batch of vaccines during January 2021, with a further, second batch to follow during February 2021.

There are several reasons why individuals, specifically employees venturing back to the workplace as the lockdown regulations ebb in their strictness, may or may not want to subject themselves to the COVID-19 vaccine relating to, amongst others, reluctance, lack of trust in the efficacy or potential side-effects of the vaccine, pregnancy, religious beliefs, and/or underlying or pre-existing medical conditions.

Regardless of the fact that the administering of the vaccine would generally be considered voluntary, there are various employment sectors within which employers may be required to impose rules and procedures confirming the taking of the vaccine as mandatory for affected employees. The most obvious of these sectors is the medical profession where health-care workers, for example, may have little choice, regardless of their personal beliefs, but to submit to mandatory vaccinations in order to protect those entrusted to their care.

While the rollout of the COVID-19 vaccine in South Africa has not yet commenced, the President has indicated that nobody would be compelled to take the vaccine. It is expected, however that the majority of employers will, most likely, encourage employees to ensure that they are duly vaccinated in order to decrease the surge in infections by reason of the close proximity within which most employees in workplace settings tend to operate.

Relevant legislation

Section 12(2) of The Constitution of South Africa records that:

Everyone has the right to bodily and psychological integrity, which includes the right—

(b) to security and control over their body; and

In light of the above, and regardless of whether it may be beneficial for the public at large, no person can be compelled to be vaccinated without an obligation endorsed through a legislative process.

On the other hand, Section 27 the Constitution further states that:

“(1) Everyone has the right to have access to—

  • health care services…”

This places an obligation on the state to ensure that these services are available to everyone.  It is submitted, however, that section 27 does not in any manner compel an employee to utilise the access afforded to him or her.

It is safe to say that the employer’s obligation would be to continue to take all reasonable steps to ensure that the basic protective measures that have been implemented throughout the duration of the COVID-19 pandemic, such as having a workplace COVID-19 policy encouraging the wearing of a protective face mask, the use of hand sanitizers, and the implementation of social distancing measures, is continually enforced. The employer will, considering the above, not be entitled to force an employee to submit to vaccination whether under threat of sanction or otherwise.

 

Article written by Lerato Mlambo & Peter Turner.