Contact Us
17 September 2021
Can companies force South Africans to vaccinate?
While the South African government tries to convince citizens to inoculate themselves against the COVID-19 virus, companies like Discovery have gone one step further by requiring all employees, except those with valid reasons, to be vaccinated by 1 January 2022.

According to Prof Megan Shaw, an Associate Professor in UWC's Department of Medical Biosciences and a virologist who has been doing research on viruses for the last 20 years, South Africa is faced with two options – to use non-pharmaceutical measures such as quarantines, isolation, masks, and lockdowns, or for citizens to vaccinate”.

Non-vaccination will lead to employees taking more sick leave when infected with COVID or having been in contact with a COVID positive individual.

Dr Yvette Basson, a senior lecturer in the Law Faculty with a research focus on labour law, social security, and persons with disabilities, says that there is “difference between making vaccinations compulsory for employees to remain employed and for citizens to use business services.”

“If an airline says you have to be vaccinated to make use of their services, then that is entirely their prerogative.”

However, while citizens have a right to bodily autonomy, Basson (pictured) says that during “a worldwide pandemic, there may be a case for bodily autonomy to be justifiably limited”.

While decisions like the one made by Discovery could be referred to the Constitutional Court, the right to bodily autonomy is balanced with Section 36 of the constitution which essentially provides that rights can be limited if certain requirements are met.

As South Africa faces an uphill battle to reach herd immunity – the vaccination of at least 70% of the country’s population – the means may be justifiable as the slow vaccine uptake cripples the economy. The pandemic has decimated jobs leading to an expanded unemployment rate of 44.4%, the closure of businesses, and a widening gap between privileged and underprivileged households.

“If we want our economy to recover then we may have to move to a situation where we will have to check people’s vaccine status before they participate in certain activities. France is one of those countries where you need to either show proof of vaccination or a very recent negative COVID test result in order to participate in certain activities.”

“The vaccine is also minimally invasive and the science indicates that the vaccines are safe and effective.”

From a labour law perspective, Basson also expects that employers will face backlash from existing employees if they are required to vaccinate to retain their jobs. Unlike the case for incoming employees, a change in these employees contracts would constitute a unilateral change in employment conditions, which will not readily be accepted in South Africa. 

“If an existing employee was dismissed because of a refusal to take the vaccine that could become a legal sticking point, but of course, if compulsory vaccination is legislated, that’s a different case all together.”