In these discussions expert voices give their views on the legal issues surrounding mandatory vaccination policies (part 3) and collecting and maintaining personal data (part 6) on employees that have been vaccinated.
Part 3: Mandatory COVID vaccines
With vaccination programmes well underway, the question has begun to arise: can employers make the vaccination mandatory? The answer is complicated and involves balancing the competing priorities of ensuring a safe workplace and the civil rights of an employee.
Mehnazz Bux, partner on the employment team, describes this, saying, “Not only is this a complex issue but a controversial one for many employers. There is currently no law requiring mandatory vaccinations. The implementation of a policy can infringe on one or more of an employee’s constitutional rights. This can be an employee’s right to freedom of religion, belief and dignity.”
One of the most complicated variables is the effect that policy changes can have at the very foundations of an agreement between an employee and their workplace – their terms and conditions of employment. Bux notes terms of employment “cannot be changed without agreement between the parties”, and, if consent is not sought, legal recourse may be pursued. To avoid any issues or confusion, she suggests that employers obtain expert legal advice before attempting to implement any mandatory vaccine policies.
How can employers begin to prepare for this new reality? To start, it is unlikely that a mandatory vaccine policy will be implemented anytime soon. “Employers should see this as an opportunity to embark on a communications drive creating awareness about the vaccine so, when it becomes more readily available, employees can make an informed decision about whether or not they take the vaccine.”
In the event of any claims or issues arising during this period of uncertainty, employers can still rely on section 35 of the Prescripts on Occupational Injuries and Diseases Act. Kenneth Coster, partner from the Health & Safety team, describes the protection as, “employees and their dependents will be prevented from launching a claim against an employer for any diseases contracted in the scope of their employment.”
Coster further notes that any on-site vaccination programmes administered by employers might involve issues of “legal liability” and that the Act may be amended to accommodate such practises.
Part 6: Personal information management of employee vaccine data
As mass vaccination campaigns begin to result in a mix between non-vaccinated and vaccinated workforces, employers will soon be faced with a quandary over personal data regarding vaccination status.
Karl Blom, a privacy expert at Webber Wentzel, suggests that the first place to start is with the Personal Protection of Information Act, or POPIA, which protects all personal information. All personal information in South Africa is protected by POPIA, “and there is a category known as ‘Special Personal Information’ that is unique and for more sensitive information and has stronger protection in our law,” says Blom.
Health information falls squarely within this special category and this includes any information detailing medical treatments or conditions. For any employer, this means they must exercise caution on how they use this data, especially how it is collected, stored and shared.
Employers and businesses have been collecting vast amounts of personal data during the pandemic about those who enter their premises. Data of this type is currently collected under the Disaster Management Act and is mandated by law, but this mandate does not extend to vaccination data.
Under POPIA, employers “can only collect and use that information where there is a law that allows them or requires them to do so, if they get consent or if that information is deliberately made public by the employee,” says Blom.
This means in practise you have two situations where you may collect this information: where an employee consents or where they deliberately make it public of their own volition, such as ‘I’ve had a vaccine’ even on Facebook or another type of forum.’
Yet in most cases, the power of disclosing this data is in the hands of the employee. Blom concludes, “employers cannot obtain this data until the law is updated or an employee consents to this information.”
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