COVID 19 Vaccination versus Rights and Job Security!

The past week a number of websites ran with the question – Can your employer/boss force you to take the COVID-19 vaccination?  The very same question has been asked and answered in other countries such as the United States of America. In line with their legislation the answer is that “…any employer can mandate the COVID-19 vaccine, provided they accommodate religious and disability-related objections and the employee receives it from a provider that does not contract with the employer…”  

What does South Africa say?

Legal experts in South Africa have different views in approaching this contentious question.

• Danie Pretorius, Director – Fluxman, said during an interview on The Money Show that “the rights of the employers should trump the individual… We should rather adopt a philosophy of ‘we first’ instead of ‘me first’. It wouldn’t be a forced holding down of people but they should say ‘if you don’t want to take the vaccine then you can’t work and if you can’t work, then we don’t need to pay you’. There’s a variety of options…my view is that you would be able to insist on vaccination… There are a variety of options such as the lockout remedy…”
• Hugo Pienaar, Director – Cliffe Dekker Hofmeyr, hold a more cautious balanced view and said to BusinessTech this week that “it is always the preferred option for the employer to engage in meaningful consultations with the employees and/or their representatives before embarking on any changes that will impact them.” (Own Emphasis)

Fundamental Rights

At least two of the Fundamental Rights afforded to everyone, as per the Constitution of the Republic of South Africa, 1996 (Constitution), comes into play are:

• The Freedom and security of the person, in section 12(2)(b) and (c) – “Everyone has the right to bodily and psychological integrity, which includes the right- to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.” (Own Emphasis)
• The Freedom of religion, belief and opinion, in section (15)(1) – “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”

Today’s article will not dissect the meaning and depth of these rights, but will concentrate on the keywords in section 12 namely ‘Informed Consent’ when it comes to ‘bodily and psychological integrity’ as medical intervention without informed consent may be unlawful. Bear in mind that all fundamental rights can be limited!

Informed Consent

Consent cannot be put in a box and everything else measured against that one limited expectation or definition. It is so much wider and complex. I am merely scratching the surface today by assuming that an employee/MISA member, in the context of this contentious question, is someone with the legal capacity to make a decision.

Chief Justice Innes in Waring and Gillow Ltd v Sherborne as far back as 1904 laid down the requirements for consent. As per this judgment consent will:

• not violate the good morals of society
• be given in the proper form where such form is prescribed by law
• be given freely and voluntarily
• be clear and unambiguous
• be comprehensive
• encompass all three elements of consent (being full knowledge of the nature, diagnostic procedures, risks and costs of the procedure or treatment, appreciation thereof, and acquiescence thereto)
• be given by a person legally capable to give consent. This does not mean s/he must have full legal capacity to act, but must be intellectually mature enough to appreciate the implications of the act, and must not be mentally ill or under the influence of an intoxicating substance.

When consent is given freely and voluntarily it goes without saying that the three elements listed above has been complied with and that the giver of the consent must have been informed of the risks and the benefits prior making a decision.

Informed consent, was held in inter alia Beukes v Smith (211/2018) [2019] ZASCA 48 (01 April 2019), to be the key aspect when wrongfulness needs to be assessed.

The National Health Act, 2003 (NHA) reiterates that medical treatment or health services may not be provided to a user without the user’s consent. In continues to provide in sections 6 to 8 that:

• The consent must be specific, for a specific health service;
• The person giving consent must have legal capacity;
• The person(s) giving consent must have “full knowledge” of their health status; variety of treatment available; benefits/risks/consequences of each specific treatment; right to refuse and the impediments/risks/onuses of such a refusal.

The NHA is clear that the consent given must be an informed consent and it must be given voluntarily. An employer forcing an employee to receive the COVID 19 vaccination, seen in isolation, cannot be free or voluntarily.

Limitation of Rights

Section 36 of the Constitution, Limitation of Rights, provides that “…rights in the Bill of Rights may be limited only in terms of law of general application to the extent that 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…importance of the purpose of the limitation…nature and extent of the limitation…relation between the limitation and its purpose; and less restrictive means to achieve the purpose…” (Own Emphasis)

The limitation clause in mind, what might limit your right in terms of section 12 of the Constitution? It all comes down to striking a balance between you as employee and your employer.

The employer is obliged in terms of the Occupational Health and Safety Act, 1993 (OHSA) to provide and maintain a safe working environment, both for its employees and other persons who have access to its premises, such as clients/customers or suppliers. The Disaster Management Act, 2002 signed on 29 April 2020 regulates in section 7 the Isolation or Quarantine of persons. It goes as far as to provide that when a “person refuses to quarantine himself or herself. or travel to a site of isolation or quarantined facility as directed, a magistrate in whose jurisdiction such a person is, must make an order as contemplated in Form 1 of Annexure A, to compel such a person to quarantine himself or herself, travel to such site of isolation, quarantined facility, or medical screening.”

There are definitely limitations, but it does not by default take away your Constitutional Rights. You still have the right to make an informed decision whilst bearing in mind the totality of circumstances and the risks whilst your employer must balance your rights with the different legislations, directives and workplace rules. It is all about fairness!

Conclusion

There is no clear cut answer, each situation must be weight and decided on its own merits. MISA’s view is the same as that of Hugo Pienaar – “it is always the preferred option for the employer to engage in meaningful consultations with the employees and/or their representatives before embarking on any changes that will impact them.”

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: