Can your company force you to have a Covid-19 vaccine? Legal advisor Elsabé Klinck unpacks the law

Elsabé Klinck, a former legal advisor to the SA Medical Association, picks up on a thorny issue for freedom-loving South Africans – the proposed (by business groupings) introduction of mandatory Covid-19 vaccination. The one-time senior lecturer in the Department of Constitutional Law at Free State University (and co-author of Employment Equity Law and International Human Rights Standards) spoke to veteran medical journalist Chris Bateman.

Elsabé Klinck on balancing rights and the public good for mandatory vaccination 

Our Constitution has a weighing up of rights because my right to, for example, not be vaccinated can affect somebody else’s right of access to healthcare; it can affect somebody else’s right to life; or my right to say, “I’ve got a religion that says I can’t do this.” Our Constitution has a limitation clause and that limitation clause is vitally important. People say “I’ve got freedom, I’ve got a right.” In our Constitution, we need to say: which freedom and which right do you have, and then bear in mind those rights and that freedom can be limited. But it’s not anybody’s discretion who limits it. We have to find laws that authorise that limitation, and we’ve got two laws that authorise it.

On the laws that authorise mandatory vaccination 

The first law is the Occupational Health and Safety Act. That’s an old law from 1993. The year before we became a democracy, we had this law in section eight that made it mandatory for employers to protect their employees. It’s on that basis that, for example, you cannot enter a construction site without a hard hat. Even if I don’t like it and it messes with my hair and my freedom to have an open head, I still have to do that. So it’s nothing strange in employment settings that we require people to take steps that may be uncomfortable. It is a social responsibility.

There’s another law in the Employment Equity Act. And that’s more recent. It’s a 1998 act that came into effect in 1999, which says it is not discriminatory to differentiate between people if that differentiator is an inherent requirement for the job. For example, currently, nurses in hospitals must have hepatitis vaccines; or if we fly into other African countries and come back, we must have a yellow fever vaccination. So, it is an inherent requirement of the job. You cannot do your job correctly and safely if you don’t have that particular thing. That’s a more modern act. 

On whether an employee can be dismissed for refusing to be vaccinated 

You can dismiss somebody because they can no longer fulfill an inherent requirement of the job, as it’s part of the operations. Another example, I’ve got medical device clients and their reps go into the theatre. To go into theatre, you cannot can’t pose a health risk to the patient or the other people in the hospital. Ultimately, you can fire somebody because they can no longer do the job as an inherent requirement is not being fulfilled. Under the Occupational Health and Safety Act, employers can also dismiss people.

There are heaps of case laws in South Africa on ways of dismissal on things like religion, health, whether a particular requirement we put on people is fair or not. It will be deemed to be fair if we can rely on these legal principles but we have to follow a fair process. 

On setting up an enabling environment to ensure vaccination

We need to make it easy for people to get vaccinated. You have to consult and explain. Myth busting and role modelling are important. After you’ve done all of that, you can start your usual disciplinary processes. Then you need to, in that process, give the person an opportunity to present evidence. In some of the cases that we have been involved in, people said it is for medical reasons.

When we ask for the medical proof, they couldn’t provide any evidence. So, this is also important. People can’t just say things and think that makes it valid. They need to be able to prove it. If you say it’s on religious grounds, you need to be able to prove it’s a key tenet of that religion. Or that it is a key aspect of medicine that you cannot get the Covid-19 vaccine if you have a particular condition. 

On vaccination proof as a condition to enter certain premises 

You can stipulate that people have to be vaccinated and one can require proof of that. The reason for that lies in the Occupational Health and Safety Act. The Occupational Health and Safety Act does not only apply to the employees and the employer, but it also applies to any person who visits the premises. There is a duty on the employer to make sure the staff and everybody is safe, in the same way that if their employees go into a hospital, they need to make sure that not only are the employees in that workplace, but anybody who visits, is safe.

That duty is in section 19 of the Occupational Health and Safety Act. It carries criminal sanction. People are absolutely entitled to refuse entry to unvaccinated people to protect their staff. Some of those employees may have children who are immunocompromised and conditions that would make them prone to severe Covid-19. I would have to consider that as it is my duty under the Occupational Health and Safety Act.  

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