A declarator on mandatory vaccinations in the workplace may encourage employers to implement them

27 October 2021

Despite a directive from the Department of Employment and Labour in June 2021, permitting employers to introduce mandatory vaccination policies in their workplaces provided certain consultation requirements are met, employers seem to be nervous about implementing these policies. A judgment on the constitutionality of the mandatory vaccination workplace policies may be what is required to encourage businesses to introduce them.

Business Unity South Africa announced this week that it intends to approach the High Court for a declarator "in order to provide certainty and give employer's confidence that they are on the right side of the law".

Jacqui Reed, employment lawyer at law firm Herbert Smith Freehills, says: “Given the decline in demand for the jab and low vaccination rates which expose SA to the real risk of a fourth wave in December 2021 where, potentially, another 255 000 lives are lost, an application seeking a declarator may be the best way to increase vaccination rates.”

Discovery Health was the first large South African employer to announce that it would be implementing a mandatory vaccination policy at its workplace with effect from January 2022. Several other large employers have followed suit, including Sanlam, Curro and Life Healthcare.

During a webinar hosted by Business for South Africa on Friday, 8 October 2021, Dr Ron Whelan, Discovery's Chief Commercial Officer, said that when Discovery was exploring whether it would be appropriate and necessary to introduce a policy, it considered its moral, social, ethical and legal obligations as well as its purpose and values as an organisation. It decided that vaccines should be mandated in circumstances where COVID-19 is an unprecedented health tragedy with more than 255 000 excess deaths reported in South Africa since May 2020 and where the data unequivocally supports vaccine efficacy.

Some commentators are of the view that mandating vaccinations will constitute an infringement of our hard-earned rights to bodily integrity, alternatively religion, belief or opinion, alternatively constitute unfair discrimination.

The South African Human Rights Commission has a different view. On 4 October 2021, it released a statement where it said "Given that the pandemic is an existential crisis that affects all human beings and implicates both rights and responsibilities, it is highly likely that a general law mandating vaccination will pass constitutional muster."

Section 36 of the Constitution provides that a law of general application may limit a right in the Bill of Rights provided the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

Reed explains: “In most instances, it is probable that employees would object to being vaccinated on the basis that it infringes their right to bodily integrity. Importantly, it is only the right to life and the right to human dignity that are entirely non-derogable and therefore protected. The right to bodily integrity is therefore capable of limitation. The same applies to the right to freedom of religion, belief and opinion. ”

The purpose of the limitation of the right to bodily integrity, for example, is to protect vulnerable employees from infection and respond to a global health crisis which has been relentless in its devastation of lives and livelihoods for the last 18 months. It is in the interests of fellow employees and the communities at large and is therefore of paramount importance.

The limitation is not ongoing in the sense that regular injections are required. It is also not particularly invasive and in most instances, does not result in any severe side effects. The efficacy of the vaccine is strongly supported by the available scientific data and has resulted in significantly fewer cases of serious illness, hospitalisation and death.

Critically, there are no less restrictive means to control the spread of COVID-19 which are as effective as the vaccine.

Reed says: “Undoubtedly, this is a human resource management issue and the ability to persuade employees to vaccinate is the preferable approach. If this is not successful, it appears from the above, which is supported by the SAHRC, that employers who dismiss an employee for failing to be vaccinated will not have infringed upon the employee's constitutional rights nor will this constitute unfair discrimination.”

Issued by Herbert Smith Freehills, 27 October 2021