It’s difficult to overstate just how much the Covid-19 pandemic has affected our lives. Within a few short months, the entire world had to adapt to unheard-of restrictions ranging from limitations on gatherings to national curfews. The legal opinions written on these constraints could fill libraries already, but then, just as we were getting used to the new order of things, we experienced a breakthrough – a set of vaccines. For many people, this was a cause for joy and celebration, but at the same time, it opened up a whole new realm of debates and dissents within the judicial system. How do these vaccines change the current restrictions? Can they be mandated? Can you refuse to take them? Overall, we’ve begun to wonder, What is the Law on Vaccines?
Currently, vaccines are not mandatory in South Africa. Whether we’re talking about polio and measles vaccinations for children or the more topical Covid-19 vaccines for all and sundry, South Africans usually have a choice over whether or not they wish to get vaccinated (there are some expectations involving ‘notifiable diseases’ but they all involve extremely lengthy and complex legal proceedings).
But this state of affairs is hotly contested. Some groups believe that vaccine mandates should be pushed forward throughout the country while others believe that this is a clear violation of certain constitutional rights. Beyond public opinion, we also need to consider whether or not the government even has the judicial ability to impose such a mandate. But before we get into all that, let’s begin with your legal rights as they currently stand.
Coronavirus: The Covid Vaccine and your Legal Rights
A recently released directive from the Department of Employment and Labour on the Occupational Health and Safety Measures in Certain Workplaces has shed some light on the viability of mandatory vaccines (at least within the workplace).
According to these directions, employers are expected to conduct risk assessments for their employees to determine whether or not they wish to impose mandatory vaccinations and, if they choose to do so, they must determine which employees are seen as ‘high-risk’ and who thus, must be vaccinated.
But didn’t I just say that vaccine mandates aren’t a thing in South Africa?
Well, in the same way, that you may refuse a polio vaccination for your child and then proceed to have a very difficult time getting a said child into a public school, you may likewise refuse to be vaccinated on medical or constitutional grounds but then be subjected to all manner of annoying limitations in the workplace.
For example, if an employee refuses to be vaccinated, they must be ‘reasonably accommodated’ while ensuring the safety of other workers. This could lead to things like – forced masking for the employee, modification of work hours, movement of the employee’s work location, etc.
It is also important to note that these mandates must take into account the risk factors of the workers and may be struck down after they are considered by courts on a case-by-case basis. What is the Law on Vaccines?
When can your Employer Mandate Vaccines?
As mentioned, the feasibility of a vaccine mandate at work is going to depend on multiple factors. Perhaps the most important element to consider is the potential risk factor relating to the employee, both for themselves and for those they come into contact with.
Simply put, if you work from home or in a relatively isolated environment, your boss is going to have a hard time getting a court to agree that a mandatory vaccination is necessary and/or justifiable. On the other hand, if you work in close proximity to multiple high-risk individuals, such as a nurse working at an old age home, a judge may be inclined to agree that you require a vaccine and a mandatory vaccination may be considered legal.
Can you be Fired for Refusing a Vaccination?
While the directive does not give clear guidance on the topic, it would seem that, in certain scenarios, dismissal for refusing a vaccination may be considered but only as a last resort. As noted, employers must first attempt to accommodate their workers as best as possible, this includes things like allowing the individual to work from home, masking, sanitising, etc.
In the event that the worker cannot be reasonably accommodated (normally due to the nature of their work), the employer may be able to legally fire them. We should mention, however, that these types of dismissals are still very rare and are hotly debated from a judicial perspective, for example, trade unions have already begun to take legal action against employers who fire their workers on these grounds.
Can the Government Mandate Vaccines?
Unfortunately, there’s no simple answer to this question. Legal experts have been debating this point since long before Covid-19 was even a thing and it seems as though they’re no closer to reaching a consensus.
At its heart, this debate involves weighing up the constitutional rights of the individual against the constitutional rights of the public while ensuring that any limitations to these rights should not exceed their necessity.
The competing rights in this case usually involve –
- Section 12 (2) The Right to Bodily Integrity – This right allows individuals to make decisions concerning their own body which would include declining a vaccine.
- Section 11 The Right to Life – It is sometimes argued that an unvaccinated individual may be putting others at needless risk by potentially spreading the illness. Thus, the safety of the community needs to be weighed against the bodily integrity of the individual.
- Section 24 (a) The Right to an Environment that is not Harmful to your Health and Wellbeing – Similarly, it can be argued that an unvaccinated individual is helping to create a potentially harmful environment which could negatively impact those around them.
All in all, this argument normally comes down to whether or not you believe that the potential safety of the public trumps the liberties of the individual. Advocates who favour public safety usually argue that vaccine mandates should be put into place due to the unique nature of the threat while advocates favouring individual rights usually believe that each person should have the right to choose for themselves.
While many constitutional rights can absolutely be limited in certain scenarios (such as during a state of disaster), it is also important to consider the extent to which these rights will be limited and whether or not such a limitation is justifiable. There are also many groups which advocate for vaccinations while opposing a mandate.
Who Should be Vaccinated First for Covid-19?
When dealing with vaccine mandates at work, employers are advised to prioritise high-risk individuals as identified by the aforementioned risk assessment. The two most prominent factors influencing this decision will be –
- Comorbidities of the individual – Workers with certain contributing health factors need to be considered for the vaccine as soon as possible, this commonly includes the elderly.
- Risk of transmission – Workers should also be prioritised according to their rate of interaction with others. For example, a restaurant employee or a person working in a crowded area will usually need the vaccine before someone who works alone in their office.
Of course, if an employee’s characteristics and duties intersect with both of these points, like when a worker interacts with many elderly people, their risk assessment will probably prioritise them even further.
In Conclusion – What does the Law say about Vaccines?
Generally speaking, vaccines in South Africa (including the Covid-19 vaccine) are not mandatory and individuals may decide for themselves whether or not they wish to get them. That said, a recent directive has authorised certain workplace vaccine mandates although these are frequently challenged and are considered by courts on a case-by-case basis.
Employers may conduct risk assessments to determine how susceptible their workers are to Covid-19 and how they may combat this issue. Employers may institute a vaccine mandate if it is reasonable and justifiable to do so but employees who refuse to be vaccinated may not simply be fired.
Employers must reasonably accommodate workers who refuse the vaccination which may include things like mandatory masking and isolation from others.
If the worker cannot be reasonably accommodated, the employer may be able to legally dismiss them, however, unions have already begun taking employers to court over such dismissals.
While the government has not yet made vaccinations mandatory the topic has been debated by various experts who argue over the constitutionality of such a mandate. The chief argument centres around the importance of individual rights (the right to refuse the vaccine) versus the rights of the public (the right to life and safety) and which of these should hold precedence. Limitations to constitutional rights can be implemented in certain scenarios which may permit such a mandate.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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