The concept of mandatory vaccination policies has been widely publicised in 2022 and it remains a controversial topic which continues to divide opinion amongst the nation.
As recently as 21 January 2022, in the matter of TM v Goldrush Group (GAJB 24054-21), the Commission for Conciliation, Mediation and Arbitration (“CCMA”) held that the dismissal of an employee who refused to be vaccinated was fair. In this matter the CCMA was tasked with determining whether or not the employee’s dismissal was substantively fair based on the employees working conditions and the refusal to be vaccinated. In light of the aforementioned ruling, employees have been left wondering who will be responsible for injuries and illnesses which may arise as a result of a Covid-19 vaccine administered in accordance with a mandatory vaccination policy.
Clarity on the aforementioned question appears to have arrived in the form of a notice which was recently published in the Government Gazette (“Notice”) in terms of section 6A(b) of the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993. The Notice pertains to potential employee compensation for any side effects, such as injuries, illness or even death, suffered as a result of a Covid-19 vaccination in circumstances where the requirement to have the Covid-19 vaccine is an inherent requirement of the employee’s job, or where the employee is required to do so in terms of an employer’s occupational health and safety risk assessment.
The Notice provides that if it is mandatory for an employee to receive a Covid-19 vaccine, either as a result of an occupational health and safety risk assessment conducted by an employer or where the vaccine is an inherent requirement of employment, any injury, illness or death incurred as a result thereof will be covered by the Workmen Compensation Fund.
In order for the employee to be considered for such compensation, the following requirements first have to be met:
- the Covid-19 vaccine must be regarded as an inherent requirement of employment in terms of the employer’s risk assessment;
- a SAHPRA-approved Covid-19 vaccine must have been administered to the employee;
- evidence of the employer’s occupational health and safety risk assessment and vaccination plan, as required in terms of the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces, must be provided;
- the chronological sequence between the vaccine inoculation and the development of the symptoms and clinical signs must be provided;
- the employee must have presented with symptoms and clinical signs that are generally recognised as side effects of the Covid-19 vaccine; and
- additional tests may be required to assess the presence of abnormalities of any organ affected.
Whilst the topic of mandatory vaccination policies remains a highly controversial and sensitive matter, both employers and employees are encouraged to bear the aforementioned requirements in mind when either implementing a mandatory vaccination policy or consenting to receiving a Covid-19 vaccine.
VDMA’s team of experts are available to assist you and your business with drafting and amending any business-related policies you might require.