Forced vaccination: What happens if enough people refuse a Covid-19 jab?

Despite the promises that no one would be forced to get vaccinated against Covid-19, legal experts say this doesn’t mean that government couldn’t do so if needed, or that your job and other private companies couldn’t make vaccination compulsory for employees.

In order to achieve herd immunity, more than 67% of the country’s residents would have to be vaccinated or develop immunity through getting infected. To this end, government hopes to vaccinate more than 40 million people by the end of the year.

Public health law expert Safura Abdool-Karim on Monday pointed out that President Cyril Ramaphosa was categorically clear that government did not intend to force people to take the vaccine, but this could be seen as him leveraging the appeal of a greater cause on the consciences of those who may be were against taking it.

If the government, however, felt so compelled, those refusing to take the vaccine could be forced to explain to a court why they should not be compelled to vaccinate. This is why Abdool-Karim and other experts appealed to society’s sensibilities to just take the jab.

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The law allows for forced vaccinations

“There are provisions in our legislation currently that could allow government to force somebody to vaccinate. The National Disaster Management Act and the National Health Act both provide for a process where you can be compelled to vaccinate, although one would be required to obtain an order from a magistrate or a judge,” said Abdool-Karim.

Said judge would have to balance out the risks posed by that decision to the public, against the rights of the individual to their beliefs. Another factor that is under-addressed was that many people, for medical or other reasons, cannot take certain vaccines.

“It could be for health reasons and there are people who just can’t take the vaccine for health reasons. Secondly the reason could be a religious or a philosophical disagreement with taking the vaccine, in which case that is a huge question whether such an argument would be justifiable in the case of Covid-19,” she explained.

Also Read: How to safely transport Covid jabs – freight body weighs in.

Strengthening government’s case should there have to be litigation, is that there have already been limitations on people’s freedoms with Covid-19 related restrictions, were they were found to be justifiable.

People have been dealing with limitations made to freedom of bodily autonomy with the lockdown and curfew, and those of religious freedom where religious gatherings were prohibited and limited.

Meanwhile, healthcare workers union Nehawu has begun a nationwide campaign targeted at its members in healthcare facilities around the country imploring them to take the vaccine. This after a survey found that over 50% of respondents did not want to take the vaccine for various reasons. Nehawu spokesperson Khaya Xaba said the union hoped to unify all healthcare workers towards the goal of getting vaccinated, against the backdrop of widespread fear and conspiracy-driven misinformation.

Can your employer force you to get jabbed?

The president was very clear that no one would be stopped from travelling or any other freedom if they don’t take the vaccine, said Aadil Patel, director and National Head Cliffe Dekker Hofmeyr’s Employment practice. But what does this mean for the employer?

The firm recently released a guide for employers to create and carry out vaccination policies, in accordance with existing legislation.

“Employers will be unable to compel employees to take the vaccine. It is a condition of employment in that in order for the employee to be compelled to take it, they must reach an agreement with the employer. For new employers this can be stipulated in their contract of employment. Private companies cannot give an instruction where government has not. What you will have is employees will be able to say that your demand in that instance is unlawful.”

While Patel is of the belief that the broader part of society could sufficiently be convinced through education campaigns to take the vaccine, employers do have options for employees who won’t vaccinate.

“We want to rather appeal to people’s humanity and sense of Ubuntu, rather than to take people to court. But litigation on this is going to be interesting because if you don’t take the vaccine what does that say about the employer’s duty to provide a safe working environment for their employees. They may for instance get you to work remotely or find a way to seclude you,” said Patel.

“But if they can’t do that then they could potentially be able to terminate employment, not because you did not want take the vaccine, but because they cannot find an alternative place for you to keep the rest of the workers safe.”

• Simnikiweh@citizen.co.za

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