the DIfference Between VaccIne manDate & manDatory VaccInatIon

tHE diffErEnCE bEtwEEn a vaccine mandate and mandatory vaccination

AUTHOR

Deborah Pearmain

PEER REVIEWER: Rajesh Patel

ExECUTIvE SUMMARY

In South Africa, the term ‘vaccine mandate’ refers to national health policy determined by the National Executive or the Minister of Health in terms of the Constitution and other legislation to provide vaccinations for COvID-19 or other diseases as prophylaxis. Mandatory vaccination is vaccination required in terms of a law or a contract or both, refusal of which may have legal consequences for the person required to be vaccinated. The constitutional rights to privacy and bodily and psychological integrity are not absolute and may be limited in terms of section 36 of the Constitution.

INTRODUCTION

According to the dictionary, a mandate is an official order or commission to do something. It implies the authority to carry out a policy or act in a certain way described in the terms of the mandate.

The South African Constitution states in section 85 that the executive authority of the Republic is vested in the President. The President exercises the executive authority, together with the other members of Cabinet, by developing and implementing national policy and by implementing national legislation except where the Constitution or an Act of Parliament provides otherwise.

The President together with Cabinet can decide that it is national policy to provide COVID-19 vaccinations to people. The Minister of Health is a member of Cabinet and can make decisions on national health policy. The Director-General of the National Department of Health is responsible for implementing national health policy in terms of section 21 of the National Health Act No 61 of 2003.

The South African Constitution confers on everyone the right to bodily and psychological integrity. This right includes the right to security in and control over one’s own body and the right not to be subjected to medical or scientific experiments without informed consent.

One of the legally mandated roles of the Director-General is to identify national health goals and priorities and monitor the progress of their implementation. The Director-General is also required to co-ordinate health and medical services during national disasters and facilitate and promote the provision of health services for the management, prevention and control of communicable and non-communicable diseases. COVID-19 is a communicable disease because it can be passed from one person to another.

On 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs exercised her powers in terms of the Disaster Management Act No 57 of 2002 to declare a national state of disaster with regard to the outbreak of COVID-19.

The Disaster Management Act is South African legislation that sets out the powers of the Minister to make regulations or issue directions or to authorise the issue of directions to the extent necessary for the purpose of -

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combatting disruption; or

(e) dealing with the destructive and other effects of the disaster.

COvID-19 vACCINE MANDATE

The South African COVID-19 vaccine mandate is a government policy to provide vaccinations for COVID-19. It does not necessarily imply that everyone is legally obliged to be vaccinated against COVID-19. Mandates are an important aspect of responsible, constitutional government because they must be funded (Malherbe 2002).

COVID-19 is classified as a Category 1 Notifiable Medical Condition in the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions (2017). A notifiable medical condition is defined in these regulations as a medical condition, disease or infection of public health importance that is classified as a notifiable medical condition in terms of regulation 12. Regulation 12(2) allows the Minister of Health to declare a medical condition as notifiable if in his or her opinion the medical condition -

(a) poses a public health risk to a population of a particular community, district, municipality, province or the country;

(b) may be regarded as a public health risk or has a potential for regional or international spread; and

(c) may require immediate, appropriate and specific action to be taken by the national department, one or more provincial departments or one or more municipalities.

Regulation 12(1) also declares the medical conditions listed in Annexure A to the regulations to be notifiable medical conditions. Under Category 1 of Annexure A, respiratory diseases caused by a novel respiratory pathogen are listed. The explanatory note states that examples of novel respiratory pathogens include novel influenza A virus and MERS coronavirus. COVID-19 fits into this category because it is a novel coronavirus that first emerged in or around 2020 and is a respiratory pathogen. Other examples of Category 1 diseases include cholera, rabies, measles, anthrax and viral haemorrhagic fevers such as Ebola and Marburg.

The regulations set out the responsibilities of the national department of health, provincial departments of health, health districts, health establishments, health laboratories and medical schemes with regard to notifiable medical conditions. Regulation 14(1) states that the disease-specific guidelines on how to diagnose,

manage and prevent the spread of notifiable medical conditions issued by the national department must be followed in implementing the appropriate medical examination, prophylaxis, counselling, treatment, isolation or quarantine measures.

Persons involved in the provision of health care who diagnose a notifiable medical condition are legally obliged to report it to the National Institute of Communicable Diseases. Medical schemes are also obliged to report notifiable medical conditions. It is a criminal offence not to do so.

The South African government has not enacted specific legislation to make COVID-19 vaccination mandatory. However, there are existing regulations it could use to do so that are discussed below. They are somewhat cumbersome and expensive to implement as they require court orders. At the time of writing, the government’s approach is to encourage the vaccination of as many people as possible against COVID-19 in the hope of achieving herd immunity and preventing serious illness in the event that people do contract the virus.

MANDATORY vACCINATION FOR COvID-19

When something is mandatory, it is required by law or is compulsory in terms of a lawful agreement. If a person does not comply with something that is mandatory, there can be legal consequences.

Regulation 15 of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions stipulates that the required mandatory medical examination, prophylaxis, treatment, isolation or quarantine procedures must be determined on a case-by-case basis and tailored depending on the public health risk and individual circumstances of the person in question.

The regulation stipulates that the head of a provincial department of health must apply for an appropriate court order, if a person who is a clinical or laboratory confirmed case, carrier or contact of a notifiable medical condition listed in Annexure A to the regulations refuses to consent to -

(a) a medical examination, including the taking of a biological specimen;

(b) being admitted at a health establishment; or

(c) mandatory prophylaxis, treatment, isolation of quarantine in order to prevent transmission,

Regulation 15 (3) states that the health care provider, with the assistance of law enforcement agencies, should subject a person who is a clinical or laboratory confirmed case, carrier or contact of a notifiable medical condition to prophylaxis, treatment or implement isolation or quarantine procedures whilst awaiting the court order to prevent transmission.

The regulations require that certain conditions are fulfilled before mandatory prophylaxis, treatment, isolation or quarantine may be taken. To date the government has not used the regulations on notifiable medical conditions to enforce COVID-19 vaccination.

The Minister of Cooperative Governance and Traditional Affairs made various regulations in terms of section 27(2) of the Disaster Management Act relating to COVID-19. Regulation 4(1) of these regulations states that -

No person who has been confirmed as a clinical case or as a laboratory confirmed case as having contracted COVID-19, or who is suspected of having contracted COVID-19, or who has been in contact with a person who is a carrier of COVID 19, may refuse to consent to –

(a) submission of that person to a medical examination, including but not limited to the taking of any bodily sample by a person authorised in law to do so;

(b) admission of that person to a health establishment of a quarantine or isolation site; or

(c) submission of that person to mandatory prophylaxis, treatment, isolation or quarantine, or isolation in order to prevent transmission.

Provided that if a person does not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours, as the case may be, pending a warrant being issued by a competent court, on the application by an enforcement officer for the medical examination contemplated in paragraph (a).

In terms of these regulations, or the regulations on notifiable medical conditions, a person could be compelled to be vaccinated by a court order because a vaccination constitutes prophylaxis. However, as at the time of writing, the government has chosen the route of incentivising people to obtain the vaccine voluntarily.

MANDATORY vACCINATIONS REQUIRED BY EMPLOYERS

Section 9 of the Occupational Health and Safety Act No 85 of 1993 imposes a legal obligation on employers to conduct their undertaking in such a manner as to ensure as far as reasonably practicable that persons other than those in their employment who may be directly affected by the employer’s activities are not exposed to hazards to their health or safety.

Section 8 of the Act requires every employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees.

The Minister of Employment and Labour issued a Direction with regard to COVID-19 in the workplace on 11 June 2021. It required every employer to undertake a risk assessment, taking into account various factors, including whether it intends to make vaccinations mandatory and if so, to identify those employees who by virtue of the risk of transmission through their work or their risk for severe COVID-19 disease or death due to their age or comorbidities that must be vaccinated.

The employer has to develop a plan based on the risk assessment, or amend an existing plan, and consult on the risk assessment and plan with various parties referred to in the directions. If the employer decides that vaccination is mandatory in respect of employees, the vaccination plan must comply with any applicable collective agreement and take into account the guidelines set out in Annexure C to the Direction.

Annexure C of the Direction stresses that employers and employees should treat each other with mutual respect and says that employees must be notified of the obligation to be vaccinated as and when a vaccine becomes available for that employee. The employee must also be notified of his or her right to refuse to be vaccinated on constitutional grounds and the opportunity to consult a health and safety representative or a worker representative or trade union official upon request.

If the employee refuses to be vaccinated on any constitutional or medical ground the employer must counsel the employee and if requested, allow the employee to seek guidance from those same individuals. The employer must refer the employee for further medical evaluation should there be a medical contraindication for vaccination. The employer must also, if necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

While some people believe that if employers require employees to receive COVID-19 vaccinations it would violate their constitutional rights, the constitutional court has stated that none of these rights is absolute (Gaertner v Minister of Finance, 2014). The constitutional rights of one individual cannot trump the constitutional rights of others. There are many different constitutional rights that must be balanced against each other and the constitution itself provides in section 36 for the limitation of constitutional rights in terms of a law of general application in certain circumstances.

Constitutional law and labour law expert, Halton Cheadle (‘Mandatory vaccine policies will survive a constitutional challenge’ 2021) expressed the view in a webinar held by the South African Medical Research Council that a challenge to the constitutionality of a mandatory vaccination policy of an employer would probably withstand the scrutiny of the constitutional court. He also stated that it would be legally possible to dismiss an employee who refused to receive the vaccine provided that the employer followed the correct procedures.

Examples of past cases where a court has compelled a person to undergo medical treatment without consent are Minister of Safety and Security v Gaqa (2002) and Minister of Health, Western Cape v Goliath and Others (2009).

In Gaqa, the high court compelled a person to undergo surgery to remove a bullet from his leg, taking into account the public interest in law enforcement and criminal prosecution. In Goliath, the high court compelled two people with XDR (drug resistant) tuberculosis to be admitted to a hospital and abide by the rules of behaviour for XDR tuberculosis patients at the hospital. The court held that isolation of patients with infectious diseases was universally recognised in open and democratic societies as justifiable to protect and preserve the health of citizens.

CONCLUSIONS

A vaccine mandate is generally a reference to government policy on providing vaccinations to people in order to promote and protect public health and prevent the spread of certain diseases. Mandatory vaccinations may be required by legislation or an employment contract, read with relevant labour law, or a court order. The refusal of a mandatory COVID-19 vaccine may have legal consequences for the refuser.

Mandatory vaccinations are not necessarily a violation of the constitutional rights of the individuals required to be vaccinated. In an open and democratic society, the limitation of constitutional rights is, at times, justifiable in the public interest.

Mandatory vaccinations are not necessarily a violation of the constitutional rights of the individuals required to be vaccinated. In an open and democratic society, the limitation of constitutional rights is, at times, justifiable in the public interest.

REFERENCES

Constitution of the Republic of South Africa, 1996

Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, Government Gazette No 44700 Notice No R.499 11 June 2021

Declaration of a National State of Disaster, Government Gazette No 43096, Notice No 313, 15 March 2020

Disaster Management Act No 57 of 2002

Disaster Management Act, 2002: Amendment of Regulations Issued in terms of Section 27(2) Government Gazette No 43148, Notice No 398, 25 March 2020

Ellis, E. (2021) ‘Mandatory vaccine policies will survive a constitutional challenge’ Daily Maverick, 10 Nov 2021 https://www.dailymaverick.co.za/article/2021-11-10-mandatory-vaccine-policies-will-survive-a-constitutionalchallenge-legal-expert-halton-cheadle/ accessed on 16 November 2021

Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC)

Malherbe R, ‘The Unconstitutionality Of Unfunded Mandates Imposed By One Sphere Of Government On Another’ 2002 TSAR 541

Minister of Health, Western Cape v Goliath and Others 2009 (2) SA 248 (C)

Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C)

National Health Act No 61 of 2003

Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions under the National Health Act