With South Africa set to receive its first Covid-19 vaccine doses next week, the issue around companies' vaccine policies and employers’ role in vaccine roll-out is very complex.

Many different viewpoints and legal considerations will need to be taken into account, speakers participating in a webinar hosted by law firm Cliffe Dekker Hofmeyr (CDH), on January 28, have noted.

The webinar dealt with the question of whether businesses could compel their employees to get vaccinated.

University of the Witwatersrand Centre for Health Economics and Decision Science senior researcher Safura Abdool Karim said South Africa had dealt with other diseases, such as the HIV epidemic and tuberculosis in the past and that there was, therefore, a lot of legal infrastructure in place to regulate, treat and prevent diseases.

She said that compelling people to take the vaccine would be the least feasible avenue for mass vaccinations and suggested that people should be incentivised rather than forced to take the vaccine.

Incentivising people to do so is, however, not an easy process, especially given global mistrust around the vaccine’s short development time which contributes to the anti-vaccine movement; as well as other factors such as religious and philosophical opposition to taking the vaccine.

Moreover, the long-term effects of the vaccines are not known, which brings up questions around the liability of pharmaceutical companies. 

She stated, however, that there were many ways to create an environment for people to buy into taking the vaccine.

Employers, for example, should help to educate employees about the vaccine, she noted.

She emphasised that there was no one-size-fits-all approach to getting peoples' buy-in and multiple strategies would be needed to create an environment where people were willing to take the vaccine.

CDH Employment Law director Imraan Mahomed, meanwhile, pointed out that any mandatory employer vaccination policy would be considered against the backdrop of the Constitution.

Section 12(2) of the Constitution for instance provides that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body.

Patient autonomy is not, however, absolute and the Constitution also protects the right to religion, belief and opinion, as well as the right to life.

These rights must be balanced against the effects of Covid-19 as a global pandemic. Mahomed said this was about balancing the rights of the collective against that of the individual.

Employees may also resist mandatory vaccinations in the workplace. This could occur in three general categories, namely medical reasons; safety concerns; and religious, cultural or philosophical objections.

Mahomed said that, in South Africa, an employer has an obligation to ensure a safe workplace.

Section 36 of the Constitution provides for a limitation of Constitutional rights. The right to bodily integrity can therefore be limited, provided such limitation complies with the Constitutional requirements and the limitation is not overbearing.

These issues will become relevant to employers where the State does not implement a mandatory Covid-19 vaccination law.

Mahomed indicated that it did not seem as though the government would implement a mandatory vaccination law.

Therefore, ultimately, every employer must determine the necessity of implementing a mandatory Covid-19 vaccine policy for its workplace where there is no law of general application.

Mahomed suggested that companies undertake consultations to allow for a more effective roll-out in the workplace. Once an initial position on a vaccine policy is taken by an employer, the process should begin in earnest, he noted.

He indicated that this policy stance must be assessed according to the workplace in question and the needs, requirements and circumstances of employers and employees.

Therefore, he said, the requirement for such a policy should be determined on a case-by-case basis and the opposition of employees must also be considered.