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Constitutional rights and the limits of vaccination policies

The distribution of a COVID-19 vaccine is seen as a fundamental component to ending the pandemic. However, mandatory vaccinations in the workplace should be treated with caution by all employers. As it stands, there is currently no legislation in South African law that specifically requires an employee to be vaccinated against COVID-19.

As a point of departure, the Occupational Health and Safety Act mandates all employers to provide and maintain a working environment that is safe and without risk to the health of their employees. In the same breath however, the National Health Act states that a health service, which includes the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat the person will result in a serious risk to public health.

Invariably, the question that now arises is whether an employer may, after considering these two pieces of legislation, enforce a compulsory vaccination policy in the workplace.

The South African Constitution states unequivocally that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over one’s body. The Constitution, however, also limits the right to bodily and psychological integrity to the extent that it is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom. In essence, an employer’s obligation to ensure a safe and healthy working environment must be balanced with the employees’ constitutional right to bodily integrity when determining whether there are justifiable grounds to limit the right.

Furthermore, section 5(2) (c) of the Labour Relations Act bars an employer from prejudicing an employee for the employees’ failure or refusal to do something that the employer may not lawfully permit or require the employee to do. Similarly, section 187(1) (f) of the Labour Relations Act prohibits dismissals that discriminate against employees based on their religion, conscience, belief or culture. A similar prohibition is also contained in section 6(1) of the Employment Equity Act, which is also stands as a safeguard for employees.

In light of the aforementioned legislative framework, a court of law may be hesitant to uphold an employer’s decision to dismiss an employee for refusing to subject themself to a COVID-19 vaccination. Therefore, it stands to reason that, an employer has an extremely limited scope to enforce a vaccination policy in the workplace. A challenge that an employer will have to face is the ability to provide the court with compelling reasons that, under the circumstances, the rights of the employee to refuse the vaccine are outweighed by other constitutional rights such as the right to a safe environment or the right to life by way of an example.

In conclusion, there is no current legislation in South Africa that permits an employer to enforce a vaccination policy in the workplace or to dismiss employees for their refusal to be vaccinated. Therefore, as a general rule, an employee may not be dismissed for his or her refusal to be vaccinated. Employers do, however, have a limited scope to deviate from this general rule and may implement a vaccination policy in the workplace, provided that compelling reasons for its implementation exist. Employers are however, advised to do so with caution and to obtain expert advice before the implementation of such policies. Employers are encouraged to motivate employees to agree to be vaccinated through means of education as opposed to coercion.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)

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Lara Kolm - Office Manager

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2013 - High Court of South Africa

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1972 - High Court of South Africa

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