Covid-19: Vaccine passport rules might infringe on human rights

Employers planning to enforce mandatory vaccination or vaccine passport policies related to Covid-19 must consider the human rights implications.

So warns the South African Human Rights Commission (SAHRC) and experts, as companies have begun to require employees provide proof of being vaccinated against Covid-19 before being allowed to enter the workplace.

The SAHRC has already seen a handful of cases referred to it, where employees are challenging Covid-19 vaccine rules, with one having successfully done so.

Chairperson of the commission, Bongani Majola, says he is concerned about the possible human rights issues which may arise from mandatory vaccination politics, but this does not mean they are outright wrong.

It is too early to speculate how government’s plan to introduce a vaccine passport will pan out in this regard, he adds.

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Even before President Cyril Ramaphosa mentioned plans to introduce a “vaccine passport” last Sunday, government has been setting this drive in motion.

On on 11 June 2021, Labour Minister Thulas Nxesi gazetted a directive called the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces.

This appeared to give the green light for employers to begin requiring workers to be vaccinated against Covid-19. The commission has since received around 10 complaints by workers against their employers, challenging various forms of mandatory vaccination rules.

“We have the mandate and authority to check the basis on which that employer is subjecting people to mandatory vaccination and we have a few cases that we are already looking at. One of them have had to withdraw that [rule] when it became clear that such an action was taken outside of the law. Sometimes you find that the director or CEO implements these rules without understanding the parameters of the law in that regard. “

What employers have to say

Following a wave of panic around workers being forced to get vaccinated to keep their jobs, the National Employers Association of South Africa (NEASA) moved to clarify the limits of the vaccination directive to its members. The wording of the directive clearly indicates that a blanket mandatory vaccination of all employees is not its intention, it told its members.

Speaking to The Citizen, NEASA’s national manager Jaco Swart says the directive provides clear limits in its application. It envisages that employers may, but not necessarily, implement a mandatory vaccination policy in the workplace.

If an employer decides to implement such a policy, it may only be applied to employees who, by virtue of their working conditions, are at risk of being infected or employees with comorbidity, he adds.

“Once these employees have been identified, employers may request them to be vaccinated; should such an employee refuse, the employer must consult, educate and give due consideration to the employee’s constitutional right to bodily integrity and right to freedom of religion, belief and opinion.”

Should the employee still refuse, the employer must attempt to accommodate the employee by virtue of less invasive measures such as working from home, wearing of masks, setting up screens and social distancing. Only when such accommodation will cause undue hardship for the employer, may an employer consider dismissing the employee for refusing to vaccinate.

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Recently, Discovery announced plans to require its employees to be vaccinated as a prerequisite to entering its premises for work as of next year.

Dr Ronald Whelan, chief commercial officer at Discovery Health, says Discovery will be taking steps to make all of its buildings vaccinated-only zones.

“This means all internal and external parties will need to be vaccinated; or provide proof of their health status through a Covid-19 test or other means, to gain entry to our buildings. As per the mandatory vaccination policy, there will be an appeals and exceptions process, as well as reasonable accommodation as required in certain circumstances,” he says.

With extensive evidence now available, globally and in South Africa, demonstrating the efficacy and safety of the Covid-19 vaccines, Whelan says Discovery has a strong moral and ethical imperative to do everything possible to protect its staff and customers.

“The rationale for our position has been extensively vetted for its constitutionality, given this is a public health crisis and the proof that vaccination is the singular most important thing we can do to protect ourselves against Covid-19.”

What the law says

Advocate Tertius Wessels, legal director at Strata-g Labour Solutions, concurs that employers cannot simply apply a blanket approach to mandatory vaccination policies.

In determining whether an employee can be required to be vaccinated, the employer must identify those employees whose work poses a risk of transmission or a risk of severe Covid-19 disease or death due to their age or comorbidities. In other words, not every employee poses such a risk – for example workers who work from home or whose work is such that they do not come into close working contact with other workers or the public.

Advocate Tertius Wessels, legal director at Strata-g Labour Solutions

In the absence of a risk assessment and a mandatory vaccination policy, employers cannot require vaccine passports or certificates at work. To do so, would be a violation of the Consolidated Occupational Health and Safety Direction and it has the potential to infringe on an employee’s human rights.

“Vaccine passports may however be required in circumstances where a risk assessment of the workplace has been conducted and the employer has determined that an employee forms part of a particular category of employees which are required to be vaccinated on a mandatory basis,” adds Wessels.

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There are several instances, as Majola points out where mandatory vaccination rules can infringe on human rights, but these have to be balanced against the rights of others which would apply in this case such as the right to life, which is at stake if people are exposed to Covid-19.

But section 12 of the Constitution protects people’s rights to freedom and security of person. There are also instances in which the freedom of religion (section 15 of the Constitution) can be applied in favour of someone being forced to take the jab.

“If for example a child who is 19 or 17 is refused admission into a matric class for not being vaccinated, that is clearly a violation of their right to education. So if a school wants to implement a mandatory vaccination policy it has to be in compliance with section 36 of the Constitution which prescribes the manner in which this right to education is protected.”

Wessels says it remains unclear how government intends managing people who are unvaccinated as a result of their religious,medical or cultural beliefs.

“Will these individuals be required to produce a passport or certificate as proof of that they have tested negative for Covid-19? How often will these individuals have to conduct Covid-19 test? And for how long will such a negative test result be deemed valid? Many questions remain unanswered and further clarity will need to be provided.”

Politicisation of the vaccine rollout

According to political analyst and activist Dube, Covid-19 has become a highly politicised pandemic but it is firstly, a human rights issue, in that the right to freedom of bodily autonomy must be weighed against the rights of others affected by whether one is vaccinated or not.

“Everyone has the right to choose and the issue of health is personal, it’s not communal. We understand people saying ‘but we have done vaccination for polio and other pandemics, but the point is we were not there at the nexus of that pandemic, we are at the nexus of this pandemic so it doesn’t mean that you can silence people with the past,” he argues.

Among the questions raised by those hesitant to take the vaccine is why certain vaccines are apparently being sidelined in the rollout, despite evidence of efficacy.

This includes vaccines from China, Cuba and Russia. People believe that the deal which saw Aspen Pharmacare manufacturing the Johnson & Johnson (J&J) vaccine in Gqeberha in the Eastern Cape cements the argument that only vaccines from Western countries or from certain multinationals are being preferred for procurement.

“This issue of labelling people (as anti-vaxxers) for asking questions is also not helping, and it’s part of the politicisation of this whole thing. From a political point of view, I would say the way it is being dealt with in South Africa is becoming very authoritarian and draconian. At first they were saying you won’t be forced to take the vaccine, but now there is no room for discussion and I think the government is now using its power to enforce this,” says Dube.

simnikiweh@citizen.co.za