Hein Kaiser
Journalist
4 minute read
30 Nov 2021
11:06 am

Mandatory Covid-19 vaccinations may already be legal. Here’s how…

Hein Kaiser

OHSA determines that an employer must bring about and maintain a work environment that is safe and without risk to the health of the workers and members of the public.

A Covid vaccination mandate may be on the cards sooner than we think. And the legislative tools are already in place. Picture: Hein Kaiser

Vaccinations will become mandatory. It is understood that by early 2022, amended legislation will be in place to ensure that South Africans get vaccinated, and quickly. Government has the tools to do so, quickly, and it does not need to rely on the Constitution alone.

Presently, less than a quarter of the population is fully vaccinated against Covid-19.

The state can take two simple steps to create a vaccination mandate. Firstly, under a national State of Disaster, Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, can issue an edict that compels a temporary amendment to the Occupational Health and Safety Act (OHSA). This, while Cabinet promulgates and passes amendments to OHSA.

This will provide the legal mechanism for mandatory vaccination, beyond section 36 of the Constitution, which waives individual rights for the benefit of the greater good. Constitutional rights are not absolute.

OHSA determines that an employer must bring about and maintain a work environment that is safe and without risk to the health of the workers and members of the public.

It also says that it is the duty of every employee to take reasonable care for their own health and safety as well as that of other persons. In turn, employees should also always carry out and obey lawful orders and obey the health and safety rules and procedures as prescribed by the employer.

Attorney Michelle van Heerden, of M Van Heerden Attorneys, said: “Employee responsibility also extends to that of other persons, too, and the act tasks employers and employees with the responsibility of health and safety, even for people visiting their premises. It is an all-encompassing tool.”

This means that shopping malls, airports, individual shops and restaurants for example all must comply with possible vaccination rules, for their staff and their customers.

Mike van Wyk, chief executive of Medicare24 says: “It shuts the door on anyone that has not been vaccinated, as businesses would be legally liable for endangering the health of others should they allow unvaccinated people onto their premises or employ individuals who have not had the jab.”

Unvaccinated people may have to rely on online shopping in future.

This week, Van Wyk reports, 85% of persons tested for Covid at Medicare24 facilities alone have tested positive. National infections are climbing dramatically as the fourth wave rolls up.

According to Van Heerden, OHSA further speaks to accountability.

“It appoints the chief executive or body corporate as an accountable person who is responsible for the provision of a safe and healthy work environment that minimises risk to employees and others. It is an appropriately broad piece of legislation that allows for easy amendment and will also carry criminal implications for non-compliance.”

Netnographer Carmen Murray said online conversation leaned toward outrage on the matter.

“There is only a 6% positive rating on the Meltwater scale and a 34% negative view. This is high. Neutrality is at 59% which means that people are as ambivalent about it as the nation seems to have been about getting vaccinated,” she said.

She added that it appears the world is blaming South Africa’s low vaccination rate for the Omicron variant and exporting it, this is resulting in turn leading to online xenophobia.

Individuals or employees who cannot or do not want to be vaccinated, said Van Wyk, would have to undergo weekly Covid tests. Ultimately, said Van Heerden, “it will be a balancing of rights of employers, employees and the public”.

“The limitation of constitutional rights will need to be determined by the courts.”

And she expects this to travel to the Constitutional Court. AfriForum have already indicated it would oppose any kind of vaccine mandate.

The DA says it opposes mandatory vaccination, but its view that it should be up to employers or establishments to determine individual vaccination policies is in line with what might be legislated.

Medicare24’s Van Wyk said he would welcome a vaccine mandate by government.

“The president is trying to protect the country, our economy and most of all, the lives and livelihoods of everyone.”

He added that it is time to end political footballing of the issue.

“If we continue like we have been, South Africa will fail. Who would want to invest in a country where a new variant is discovered every few months or that remains in a continuous state of lockdown?” he asks.