IS COVID 19 VACCINATIONS IN THE WORKPLACE MANDATORY?

WHAT DOES SECTION 12(2) OF THE CONSTITUTION STATE?

WHAT DOES THE NATIONAL HEALTH ACT 61 OF 2003 STATE?

It states that: “Everyone has the right to bodily and physiological integrity which includes the rights to security and control over their bodies, and the right not to be subjected to medical or scientific experiments without their informed consent”

It gives effect to Section 12 by  stipulating that:

“A health service, which includes medical treatment, may not be provided to a user without the user’s consent. The consent must be informed, specific and voluntarily given”.

The above legislation clearly stipulates that employers cannot compel employees to be vaccinated. However, one has to also consider section 36 of the Constitution which states the following:

• “The rights in the Bill of Rights may be limited in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom to account all the relevant factors that will be taken into account”

All relevant factors will be considered, including:

1. The nature of the right;
2. The importance of the purpose of the limitation;
3. The nature and extent of the limitation;
4. The relation between the limitation and its purpose; and
5. Less restrictive means to achieve the purpose.

The right to bodily and physiological integrity may be limited by legislation, provided that the limitations pass the test of reasonableness and justifiability. This entails the weighing up of competing rights, namely Section 12 of the Constitution and Section 8 of the Occupational Health and Safety Act, against the risk and impact of COVID 19.

There is no proven guarantee of the effectiveness of the long-term side effects or the likelihood of re-infection following the vaccination.

Be that as it may, the employers are still obliged to, amongst other things, put in place measures to reasonably accommodate the employees who for example oppose the mandatory vaccination, by allowing employees to work from home, requiring employees to wear a N95 mask while at work, and not to interact with other employees. Last but not least, the employer should ensure that the COVID 19 protocols in the workplace is enforced, to ensure that all employees can conduct their work safely.

An employee cannot be dismissed simply for refusing to take the vaccination, however, should an employer’s operational requirements stipulate that an employer is unable to reasonably accommodate an employee who refuses the vaccination, then unfortunately, such employee may be dismissed on the grounds of incapacity or operational requirements, but only if, the vaccination becomes mandatory for the performance of his/her duties.

Should you require any further information, please do not hesitate to contact Duvenage Attorneys and we will gladly assist you.