Businesses Head to Court for Clarity on Mandatory C-19 Vaccines

While businesses can introduce mandatory vaccinations in South Africa, they need to apply for express permission, and they cannot force staff to get vaccinated. They are also required to find alternative positions for employees who cannot get vaccinated for health reasons.

Coovadia said that BUSA was approaching the courts within the context of significantly increasing the demand for vaccinations before the end of 2021.

“We are saying: let’s get absolute legal certainty that will give employers a tool if they want to go that route legally, and they can then have the usual discussions with labour in implementing it,” said Coovadia.

In an analysis of the country’s regulations around mandatory vaccines, law firm Webber Wentzel said that a case would likely be needed to be decided in the courts to give further clarity on certain key issues – including blocking entry for unvaccinated employees and visitors.

The firm noted that there is currently no legislation that requires all South African citizens to be vaccinated and that vaccination is still a choice and is not mandatory.

Requesting employees’ vaccination status

In requesting and retaining information about an employee’s vaccination status, an employer should be aware of the provisions of the Protection of Personal Information Act (POPIA), Webber Wentzel said.

“If an employee is requested to provide proof of vaccination and refuses, an employer must be cognisant of the employee’s right to privacy, which includes a right to protection against the unlawful collection, retention, dissemination and use of personal information.”

However, the firm said there is no prohibition on requesting employees to declare their vaccination status voluntarily.

“This information may be obtained by way of consent in the form of a voluntary, specific and informed expression of will. It may also be argued that, despite an employee’s right to privacy, an employer’s obligations in terms of the OHSA require that an employer is aware of who is and is not vaccinated within that workplace.

“Such information should, however, be gathered and processed in accordance with POPIA.”

From a practical perspective, Webber Wentzel recommends that an employer should first request employees to disclose their vaccination status voluntarily while making its privacy policy available to employees at the same time.

Then, depending on the information received, an employer may ask employees more directly to disclose this information, it said

“If an employee refuses to disclose their vaccination status, this should be dealt with on a case-by-case basis, taking into account the reason for the refusal.”

“The above position may become clearer if vaccination becomes mandatory in the future, or if the government adopts an approach of specifically mandating that entrance to public places can be restricted to vaccinated persons, in relation to public policy considerations,” it said.

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