Legal provision for mandatory vaccination in the workplace

Can employers enforce mandatory jabs and what will happen to employees who refuse to be vaccinated?

- Amanda Visser

Tackling the topic of mandatory Covid-19 vaccinations can be as treacherous as discussing South African politics or religion. Fortunately, there are legal guidelines and policy directives to assist employers in finding reasonable solutions to ensure workplace safety.

The minister of employment and labour, Thulas Nxesi, recently published a new consolidated directive on occupational health and safety measures relating to vaccination in the workplace.

Workers may refuse to be vaccinated in terms of their constitutional right to bodily integrity; the right to freedom of religion, belief or opinion; and medical grounds.

Talita Laubscher, partner at law firm Bowmans, says the National Health Act (NHA) stipulates that anyone receiving medical treatment must give their voluntary, informed, and specific consent to receive the treatment.

“However, no right is absolute and even that right can be limited. One such limitation is where non-treatment poses a serious threat to public health.”

Mandatory vaccination

Fiona Leppan, director at Cliffe Dekker Hofmeyr, says the directive from the department of employment and labour makes express provision for an employer to implement a mandatory vaccination policy subject to specific guidelines.

The directive requires the employer to do a risk assessment if it wants to implement a mandatory vaccination programme. The employer should consider three important aspects.