As South Africa gears itself up to receive its first batch of the COVID-19 vaccine, many employers are wondering whether it is legally permissible for them to require employees to be vaccinated as a condition to returning to, or continuing to perform work from, the physical workplace.
There is no simple or easy answer to this question and decisions will need to be taken on a case-by-case basis after a careful balancing of various rights and obligations.
South African employment legislation does not specifically regulate when an employer may require an employee to undergo medical treatment. This is in contrast to medical testing, which is governed by section 7 of the Employment Equity Act, 1998. Medical testing includes a test or inquiry to ascertain whether an employee has a medical condition.
Medical treatment is different, and would include the administration of a vaccine.
In our view, the starting point for considering the circumstances in which medical treatment may be administered is the Constitutional right to bodily integrity. This right includes the right to security in, and control over, one's body.
The National Health Act, 2003, gives effect to this right and makes it clear that a health service (which includes medical treatment) may not be provided to a user without the user's consent.
In terms of sections 6 to 8 of the National Health Act:
- The consent must be for a ‘specific health service' and must be given by a person of legal capacity.
- The individual must have ‘full knowledge' (i.e. the consent must be ‘informed'). In this regard, the health care provider must inform the individual of (a) her/his health status (except in limited circumstances); (b) the range of treatment options generally available to the individual; (c) the benefits, risks, costs and consequences generally associated with each option; and (d) the individual's right to refuse the health services and the implications, risks and obligations of such refusal. (This right of refusal emphasises that the consent must be given voluntarily.) These things must be explained to the individual in language that s/he understands and in a manner that takes into account her/his level of literacy.
Consent must accordingly be informed, specific and voluntarily given.
The National Health Act makes provision for certain exceptions when such consent to treatment is not required. These include where a law or court order authorises the provision of a health service; or where the failure to treat the individual, or group of people which includes the individual, will result in ‘a serious risk to public health'.
At this stage, the Minister of Health has indicated that the COVID-19 vaccine will not be obligatory and there is accordingly currently no law which requires persons to be vaccinated.
Safe working environment
In the employment context, the Occupational Health and Safety Act, 1993 (OHSA) requires an employer to provide and maintain a safe working environment, both for its employees and other persons who have access to its premises, such as clients/customers or suppliers. (It is on this basis that an employer is permitted, and in fact required, to prevent persons who have COVID-19 symptoms from accessing its premises.)
This duty to provide and maintain a safe working environment is qualified – an employer is only required to do that which is ‘reasonably practicable'. This requires an employer to make an assessment and to consider factors such as the severity and scope of the hazard or risk identified, which, when it comes to the risk of contracting the COVID-19 virus in the workplace, will largely depend on the nature of the workplace and the work performed; and the availability and suitability of means to remove or mitigate that hazard or risk.
An employer's obligations will also need to be balanced against an employee's right to freedom of conscience, religion and belief. Such beliefs must be reasonably accommodated where they form part of the inherent tenets of the particular religion or belief system, unless the means to accommodate result in unjustifiable harm to the employer.
Principles regarding mandatory vaccination
With this legal framework in mind, we think the principles regarding mandatory vaccination are as follows:
- If an employer excludes employees from the workplace on the basis that they have not had the vaccine, there is the potential that such a policy effectively forces employees to have the vaccine and this undermines the voluntary nature of consent. However, the extent to which this may be the case will, we think, depend on the consequences that may arise if the employee is not vaccinated. If the consequence is simply that the employee will continue working remotely and will not be prejudiced by the decision not to have the vaccination, then it may be arguable that the employee retains her/his ability to decide voluntarily whether or not to have the vaccine. However, where the employee cannot perform her/his work remotely (such as a nurse or mine worker) and the employer's policy effectively makes it compulsory to obtain the vaccine in order to retain her/his job (in its current form or at all), this would violate the principle that consent must be given voluntarily.
- There are circumstances in which such a mandatory vaccination policy will be permissible, namely, if not having the vaccine may create a serious risk to public health. This could be the case in work environments with large groups of employees, such as call centres, mines and factories. The argument is that the risk of transmission among the employees is increased, and so too the risk of subsequent transmission in the respective communities. Public health risks may also be triggered in workplaces where large numbers of people are served or may be impacted, such as retail operations, hospitals and food manufacturing operations.
- In circumstances where there are less intrusive means to ensure a safe working environment, and where there is not a serious risk to public health, such less intrusive measures should be taken. These less intrusive measures may include physical distancing, mask wearing, hand sanitising etc. Accordingly, when it comes to office-based roles where there is limited contact with members of the public or fellow employees, an employer would likely meet its duty in terms of OHSA by implementing the (now) normal health and safety protocols without the need to require compulsory vaccinations of its employees. In these circumstances, the exception regarding the serious risk to public health in the National Health Act would not apply.
Another issue to bear in mind is that an employee's vaccination status would constitute health information in terms of the Protection of Personal Information Act, 2013 and can, therefore, only be processed by the employer in limited circumstances, such as where the employee consents to the processing, or the processing is necessary for the establishment, exercise or defence of a right or obligation in law.
With all of the above in mind, it seems to us that, in many circumstances, it may be more effective (and carry less legal risk) for employers to educate employees on the vaccine and encourage them to be vaccinated, rather than making it a strict requirement for entry into the workplace.
Finally, it is also important to appreciate that, according to the government's current roll-out strategy, many employees (other than essential workers or ‘vulnerable' employees) will likely only be eligible for the vaccine towards the end of 2021, meaning that mandatory vaccination policies that are implemented too early may exclude the majority of staff from returning to work for reasons beyond their own control.
Without a general law that requires all persons to be vaccinated, employers will need to tread carefully when considering mandatory vaccination policies, given the competing rights and potential legal risks involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.