With the third wave of COVID infections on the rise in South Africa, this has become a pertinent question and the topic of a very relevant and lively debate when we, as South Africans, begin to weigh up our Constitutional right to freedom and security of person with what is considered to be in the best interests of the public at large.

The South African Government may decide to pass new legislation making it legally mandatory for every South African to get vaccinated against COVID and the question is, will it?

Legally mandated vaccination may appear to be in direct contradiction with an individual’s constitutional right to freedom and security of a person as enshrined in section 12(2) of the Constitution. Section 12(2) provides every single person with the right to make decisions concerning his/ her own body, including health and medical interventions and treatment, which would include deciding whether or not to get vaccinated.

But the right to freedom and security of a person is not the only constitutional right at play here. Section 11 of the Constitution affords everyone the right to life and section 24 provides for the right to a safe environment.

The above makes it clear why section 36 was included in the Constitution and the South African Government would be required to attend to a balancing exercise. Section 36 provides for the limitation of constitutional rights in so far as it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This balancing exercise must be undertaken having due regard to the following: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and whether less restrictive means are available in order to achieve the intended purpose.

When attending to this balancing exercise, the State will need to consider the substantial risk that COVID poses to the lives of the people of South Africa but also that there are less restrictive means available to prevent the spread of the virus including mandatory mask wearing and hand sanitation in public spaces. Government spokesmen have said that the Government won’t be implementing mandatory vaccination at this time as this would be a violation of section 12 of the Constitution. However, the Government’s position may well change if the number of COVID infections in South Africa show a significant increase and the situation becomes more dire.

However, even if the Government doesn’t decide to make immunization mandatory for its citizens, some companies may still take the decision to implement mandatory vaccination policies for their employees.

In the Labour Law space, legislation and regulations are already in force that provide for new company policies to be implemented in the workplace in order to provide for the mandatory vaccination of employees. This legislation includes the Labour Relations Act (“LRA”), the Employment Equity Act, the Basic Conditions of Employment Act and the Occupational Health and Safety Act. Accordingly, if an employee was to refuse to get vaccinated in spite of the company’s mandatory vaccination policy, this may constitute constructive dismissal. However, employers should not be too hasty in dismissing employees who refuse to get vaccinated as section 187(1)(f) of the LRA prohibits dismissals that discriminate against employees based on their religion, conscience, belief, political opinion or culture. Similarly, section 5(2)((c)(iv) of the LRA prohibits employers from prejudicing an employee (or person seeking employment) for refusing to do something that the employer is not lawfully entitled to require them to do.

This places companies in a bit of a conundrum. Much like the State is required to conduct a balancing exercise in terms of section 36 of the Constitution so too would businesses who wish to implement mandatory vaccination policies. In this respect, the employer would need to balance each employee’s constitutional right to bodily autonomy with the rights of their other employees who may be affected and the employer’s duty to create and maintain a safe working environment in accordance with section 24 of the Constitution and section 8 of the Occupational Health and Safety Act.

With strong arguments from both sides, both supported by the Constitution and other legislation, it will be interesting to see how South African Courts will deal with this issue.

Another consideration to be borne in mind by employers when considering whether to implement a mandatory vaccination policy is what date to accept as the cut off on the vaccination card.

According to Dr. L.J. Tan, an immunologist and the Chief Strategy Officer of the Immunization Action Coalition (IAC), policies like the above are still premature from a scientific standpoint. Specifically, it is not yet known how long immunity from the COVID vaccine will last. According to Dr. Tan, “we haven’t got six months, nine months of duration of protection data yet. So, what expiration date are you going to accept as a private entity?”

In light of the above and considering that mandatory vaccination policies are, in any event, premature as the general population hasn’t had the chance to be vaccinated yet, the most feasible, non-invasive option currently available to businesses may be for them to encourage their employees to get vaccinated through the use of education and non-coercive persuasion. This could be achieved by offering flexible, non-punitive sick leave options (e.g. paid sick leave) for employees with signs and symptoms after vaccination; allowing time for vaccine confidence to grow and arranging for presentations by organizations and individuals who are respected by the employees to help build confidence in COVID-19 vaccines. Where this fails, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced.