Mandatory Workplace COVID Vaccines

The argument about mandatory vaccinations in South Africa has accelerated as attempts to control COVID-19 intensify in what everyone fears will be the fourth wave of the pandemic. The aim has always been on ensuring that 68% of the adult population in South Africa be fully vaccinated to enable herd immunity, but with only 38% fully vaccinated, South Africa is lagging behind.

There have been compelling scientific, ethical, and legal reasons made for and against requiring individuals to get vaccinated. Specific nations have already implemented regulations requiring individuals to show evidence of vaccination to enter certain public spaces.

This was led by countries such as Italy, France, and Greece who implemented mandatory vaccinations for health workers as well as some government officials. In the United States, President Joe Biden announced that businesses of 100 employees and more must ensure that employees are either fully vaccinated or provide a negative Covid-19 test weekly before attending work.

President Cyril Ramaphosa said in a national speech on 28 November that the government intends to establish mandatory vaccinations for specific activities. The government has established a task force to conduct extensive discussions on mandating immunization for specified activities and areas.

However, the second-largest trade group in South Africa said on December 6 that it opposes mandatory vaccinations, citing constitutional issues. It stated that it intends to seek clarification on the matter from the country's high court.

How can the South African government leverage the law to make Vaccinations mandatory in the workplace ?

South African’s government can take two distinct routes that would allow them to make the vaccine compulsory. The first involves the fact that Covid-19 was classified as a notifiable condition in 2020 under the Notifiable Medical Conditions Regulations.

These regulations are not new and have been in place for some time, indicating that any notifiable condition can be classified as any disease that poses significant public health risks. These diseases can lead to outbreaks that can severely affect people and even be fatal, for instance, cholera, listeriosis, and tuberculosis, which are all notifiable conditions in South Africa.

Every doctor or nurse, public or private, who diagnoses a patient with a notifiable disease is required to report it to the National Institute of Communicable Diseases – failing to do so is a criminal violation.

A healthcare professional would be permitted to give a vaccination even if a patient refuses to receive it under the Notifiable Medical Conditions Regulations.

However, this is not as dictatorial as it sounds: a court must determine if such action is warranted. The procedure is tricky since the director of the provincial department of health would have to get a court order, and the court would then have to decide – on an individual basis – whether requiring the individual to take a vaccination without their permission is appropriate.

In addition to this approach, another route that the South African government could take is to impose the regulations which were issued when the National State of Disaster was declared in March 2020.

These regulations were implemented to regulate the response that South Africa had towards the Covid-19 pandemic, which directs that people could be compelled to undergo testing and that they must isolate if infected, and potentially receive the vaccination.

However, even then a court order will be necessary to make the vaccination mandatory, and this can be granted by a magistrate’s court.

South African Federation of Trade Unions (Saftu) is opposing the possibility of a mandate as it believes that mandatory workplace vaccinations violate section 12(2) of the Constitution. This specific section indicates that every South African citizen has the right to bodily and phycological integrity.

This relates to the right to make reproductive choices, the right to physical security and control over their body, and the right not to be subjected to medical or scientific tests without explicit and informed agreement.

What do South Africans think of vaccination mandates?

The University of Johannesburg and the Human Sciences Research Council (HSRC) have released the findings of a new poll on mandated workplace vaccination and the usage of vaccine passports in South Africa.

A survey was carried out and collected responses from 6,633 participants between October 22 and November 17. The data collected was weighted to match the data that Statistics South Africa has on education, age, and race.

Additionally, the researchers adjusted vaccination rates by gender to match data from the Department of Health at the survey's midpoint. This data may be seen as generally representative of the adult population's attitudes.

The findings of the survey were as follows:

• 54% of South African adults are in favour of employers mandating Covid-19 vaccines, while 51% favour vaccine passports.
• Support for these measures varies significantly according to vaccination status and the overall willingness to receive the vaccine.
• Support for mandatory workplace vaccination and vaccine passports is 75% and 78% among the completely vaccinated, respectively.
• The greatest level of support for mandatory workplace vaccination is seen among Indian people (65%), followed by Black African adults (56%), Coloured adults (49%), and White adults (49%). (32%).
• Education seems to relate to more resistance to mandatory workplace vaccination and vaccine passports.
• Adults aged 18-24 years favoured mandatory workplace immunization more than older age groups.
• The survey also established support for vaccination passports for access into six types of public locations. Half (47%) favoured vaccination passports for stadium sporting events. As at schools and colleges, vaccination passports were also supported by similar numbers (43–45%).
• Municipal (38%) and religious (38%) administrations showed less support for such actions (40%).

Progress on the Vaccine Mandate

During the past week, the administration had more negotiations on the implementation of vaccination requirements, but no formal decision was made — implying that a mandate or passport system is likely to be implemented early in 2022.

However, several businesses in South Africa have already introduced vaccine mandate policies, with the reasoning that they aim to provide a safe workplace for employees and customers alike.

While the policy recognises employees' rights to be exempted from the policy and to refuse vaccination on clearly defined grounds, the businesses stand with their right to refuse to continue with the employment contracts of these employees.

Businesses who are exploring the possibility of vaccine mandates are standing by their responsibilities as employers to ensure the highest standards of health and safety.

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