Friday, January 21

The legal implication of a vaccine mandate

FIFI PETERS: At our last family gathering on Sunday, President Cyril Ramaphosa announced that the government had established a task force to consult on mandatory vaccinations. This is the latest effort by the government to increase the number of people vaccinated.

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Here, to discuss the legal implications of making vaccinations mandatory, I am joined by Michael Evans, partner at Weber Wentzel. Michael, thank you very much for your time. I guess the question we all ask ourselves is: is this within the Constitution? Can mandatory vaccination be enforced according to what the Constitution says?

MICHAEL EVANS: Hello, good afternoon Fifi, and also to your listeners. I think I must make a distinction. The only [question] The question is whether vaccination can be mandatory, but the second is what Cyril Ramaphosa said, and that was to make them mandatory for public places or public activities. There is a very important distinction between the two. His comment was the least. It was mandatory in relation to public places and public activities.

Now, to make it mandatory across the country for everyone to get vaccinated, I think it would be difficult to prosecute and defend in a court of law, because someone may choose to live in complete isolation and have no contact. with the public, and says they choose not to get vaccinated. The key question is, can it be mandatory for people entering a public place, like a school, an airport, a hospital, a gym, a restaurant, a movie theater or whatever? There I think there is a very strong argument that it can be made mandatory and it would be extremely difficult to challenge it.

Now you asked about constitutional rights, and yes, constitutional rights will be infringed if the government approves that regulation, because it potentially infringes the right to physical and psychological integrity, and potentially infringes the right to freedom of religion. belief and opinion. But those rights may be limited. They can clearly be limited. Factors that would be considered would be: What is the impact on the general public in that setting, and is there a risk to members of the public if the person is not vaccinated? All medical evidence suggests that it is. I can give you just two non-Covid examples that could help explain it.

If, for example, parents said that for religious reasons they did not want to give their baby a blood transfusion when the baby needed a blood transfusion, and that the baby would be at risk of dying if they did not receive a blood transfusion, a court definitely would. He would certainly say that the right to life of that child would be greater than the right of the parents to freedom of religion and would dictate that the baby should receive the blood transfusion.

Another example would be smoking. It’s a strange example, I know, in this context. I am not a smoker, but I have the right to smoke at home. And the courts have said that it is part of my body and my psychological integrity to be able to smoke at home; But I cannot go out and smoke in a restaurant, a movie theater or a public place because of the impact that smoking has on the public in those places, in terms of their health and comfort.

So I’m pretty sure, and I’ve been involved in constitutional law since the Constitution was passed in 1994, it is very, very likely that any court will not defend the argument that constitutional rights allow people to enter public places without being vaccinated. They will look at the impact it has on the health of the public and potentially on the life of the public, and they would say that it certainly outweighs those private individual rights.

FIFI PETERS: Some of the companies have announced that, early next year, all employees who would have to be vaccinated. So those companies with legal personality are on the right side of the law.

MICHAEL EVANS: If right. In an employment context, it is even stronger in some respects. My experiment ……: 21? has made vaccinations mandatory as of January 17 [2022] and companies like Discovery, like Investec and many others have made vaccinations mandatory.

There we have the Occupational Health and Safety Act, which makes the employer have an obligation to protect the health and well-being of not only employees, but also contractors who may come to the place, customers and everyone else. Therefore, it should stand up to constitutional scrutiny if the employers’ decision to make vaccinations mandatory were challenged.

FIFI PETERS: But for those who may not be able to get vaccinated due to certain health conditions or because of their religious beliefs, but mainly in health conditions, which is the area that interests me the most, what will it mean then for them and their rights? To access some of these public places, should the task force deliberate on whether mandatory vaccination in public places really takes effect?

MICHAEL EVANS: This is an issue that the work team must consider very carefully. We are talking about a very small minority of people who, for medical reasons, are not allowed to go back to that.

Now, in the context of the workplace that would be analyzed by the employer, and should be considered by the employer, who should they try to look for an opportunity for that employee to work in a situation that that employee will not? be in contact with other employees. Many may work at home, for example, or they could work in a secluded and isolated office.

In public places, that will be something they will have to see: if a medical certificate from a doctor can somehow allow them to enter a public place. But again, there is a real risk of the virus spreading and that would have to be weighed.

As I say, we are probably talking about an absolutely miniscule percentage of the population that is not vaccinated, who would have a genuine medical reason why they could not be vaccinated.

FIFI PETERS: But then, if that small portion of the population continues saying: “Look, my health condition doesn’t allow it; Why maybe you should be penalized or punished for not being able to access a public space like a restaurant perhaps? ”

But if this particular person finds himself in an unfortunate situation where he loses his job as a result of this, will that person perhaps have to resort to going to the CCMA?

MICHAEL EVANS: Each would have to see that on their own terms and how they have been treated by their employer. But in relation to other public places, I should have said this before too, I think one of the options for the government in relation to that small minority of cases of people who cannot get medically vaccinated will be to require them to do so. get tested for Covid; 72 hours are needed before entering the public place. If they can produce a negative test, plus their medical certificate stating that they cannot be vaccinated, that should be enough to get you into a public place.

In the workplace, each [situation] would have to be screened on their own terms, and an employee who has medical reasons for not being vaccinated would have to be screened. I think it would be very difficult for that employee to stay in a situation. For example, if they were working in a mine and going down a mine shaft lift and they weren’t vaccinated, and they were potentially exposing every other member of the lift to Covid, that would be a very difficult situation to tell. , “Yes, they have the right to continue due to their medical situation.”

But working in a law firm, where you can have an office of your own, can be a bit isolated; it is difficult to weigh in general. It would have to be analyzed on a case-by-case basis.

FIFI PETERS: From this conversation, I see that it will be quite a complex topic for the task force, and I look forward to how this plays out and maybe a follow-up conversation when we have a concrete plan on the table.

But Michael, we’ll leave it there for now. Thanks for your time. Michael Evans is a partner at Webber Wentzel.

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