Home South African Employees have right to refuse Covid vaccine, say experts

Employees have right to refuse Covid vaccine, say experts

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A number of leading experts say that employees who refuse to take a Covid-19 vaccination are perfectly within their freedom of choice, and employers have no right to take any disciplinary measures against them.

File picture: Reuters

EMPLOYEES who refuse to take a Covid-19 vaccination are perfectly within their freedom of choice, and employers have no right to take any disciplinary measures against them.

This is the view of a number of leading experts who say that to threaten or pressure employees to take vaccines is unlawful and a clear violation of their human rights, including the declaration of freedom of choice, right to bodily integrity and privacy.

Giant trade union federation Cosatu has issued a stern warning to employers, saying “no employee should be dismissed” for refusing to take a vaccine.

“We warn all opportunistic employers to stop victimising workers who refuse to vaccinate. All South Africans have a right to accept or refuse to be vaccinated either on medical or constitutional grounds,” Cosatu said in a statement.

The medical experts also said there was not enough evidence that a compulsory vaccination was necessary “at this stage” and that receiving vaccination was legally mandated.

Their concerns were raised after the Department of Basic Education (DBE) this week threatened to invoke operational requirements and incapacity clauses of the Labour Relations Act (LRA) against teachers who elect not to be vaccinated.

The DBE circular that was signed by department’s director Mathanzima Mweli reads: “After considering the educators’ reasons for opting not to be vaccinated such as medical, religious, constitutional, cultural and commodity, the (DBE) reserves the right to deal with such educators in terms of either operational requirements, incapacity procedures as contemplated in terms of LRA.”

Educators who refused to be vaccinated have pointed out that they were afraid of the widely reported after-effects of vaccines and claimed that there is evidence of people who died after being vaccinated.

The DBE threats make a mockery of President Cyril Ramaphosa’s assertion during his recent address to the nation, during which he said that while the government’s vaccination drive moved into top gear, nobody would be forced to take a vaccine.

The DBE’s controversial circular comes hardly a week after Ramaphosa’s assurance to the public.

Dr Raynauld Russon, the director of the Institute of Commerce and Management at Wits University, said that although the government has stated that no one would be forced to take vaccines, he always knew that it would use other methods to push people to vaccinate including peer pressure.

“The most effective measure that has been used successfully over the years is peer pressure. The most bizarre case I have come across is where one sibling is barred from visiting the family home where the parents live because he is not vaccinated.

“There is a lot of controversy going around about the contra-indications and long-term effects of the vaccine. The vaccine, especially the RNA vaccine of Pfizer and Moderna has never been used before and is being tried for the first time. Furthermore, this vaccine has not been adequately tested on animals before being used on human beings as required by the Nuremberg Code of 1947,” he said, before adding: “Several people have lost their lives after taking the vaccine and many have suffered adverse reactions like muscular dystrophy. One political party (Shosholoza Progressive Party) has opened a case of attempted murder against the Minister of Health for utilising this vaccine without proper trials.”

Russon also stressed that “everyone has inherent dignity and the right to have their dignity respected and protected. It is uncertain how far the department of education is willing to push for vaccination without interfering with the dignity of the individual”.

“Teachers may refuse to remove their tops to show that they have or have not vaccinated unless vaccination certificates are made compulsory,” he said.

“Due to the short period of trials and tests for the vaccines, little evidence exists to prove or disprove the fact that vaccines may or may not affect reproductivity. The only fact at our disposal at this point is that women who are pregnant or are planning to get pregnant must not take the vaccine.

“The vaccine is intravenous to the body and therefore it cannot be administered to your body without your full consent. This means that, constitutionally, you have a right to refuse the vaccine as you may refuse any treatment that enters your body”.

Medical scientist at the University of Pretoria Professor Tivani Mashamba-Thompson said people who refuse to take vaccines are covered by the existing human rights laws.

“According to section 12 (2) of the Constitution, every person has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction, security and control consent. According to this section of the Constitution every person has the right to make decisions on health and medical interventions and treatment including the acceptance or rejection of the vaccine,” she said.

Mashamba-Thompson said so far none of the vaccines can prevent anyone who is exposed to Sars CoV-2 from spreading or transmitting it to others.

“We are all still at high risk of infection and of infecting others, regardless of our vaccination status. However, since vaccinated people are less likely to show symptoms after exposure or infection by Sars CoV-2, they are likely to transmit the infection to others. Evidence shows that the Covid-19 vaccine prevents serious illness after infection with Sars CoV-2,” she said.

Her sentiments were echoed by Dr Mvuyisi Mzukwa, vice-chairperson for SA Medical Association (SAMA), who emphasised President Ramaphosa’s words that vaccination was not compulsory and warned that the vaccine does not protect against infection and transmission.

The vaccine boosts the immune system by developing antibodies that are specific to a particular virus or bacteria, she said.

“It is the responsibility of the employer to prevent work-related hazards and keep a healthy workforce. However, the president is on record informing the citizens including workers that the vaccine will not be compulsory.

“The Bill of Rights in our Constitution protects workers by declaring that they have freedom of choice, and right to bodily integrity and privacy.

“Remember, those that are vaccinated can still get the infection and may still have symptoms. If they get easily transmissible variants like Delta, there is a higher chance of transmitting it to others. That’s why non-pharmaceutical interventions are still highly recommended even if you have been vaccinated.”

However, South African Medical Association (SAMA) president Dr Angelique Coetzee said the best strategy would be to educate and counsel teachers and the public on the need to take vaccines for two main reasons: to ensure safety and secondly, that the country contains the infection toward attaining “herd immunity” as soon as possible.

“It could be argued that the two reasons mentioned above, if backed by scientific evidence, demonstrate that it would be reasonable and justifiable to compel teachers to take the available vaccine,” she said.

Approached for comment, Department of Basic Education (DBE) spokesperson Elijah Mhlanga defended the circular saying the purpose was to provide guidance regarding operational requirements for educators employed in terms of the Employment of Educators Act of 1998 following the implementation of the Basic Education Sector Covid-19 vaccination programme. But at no stage did the DBE seek to compel employees to be vaccinated.

Mhlanga added that the circular also serves as a guide to managing vulnerable employees in the context of the current pandemic.

“The department has strongly recommended that education sector personnel get vaccinated but at no stage did the DBE seek to compel employees to be vaccinated.

“Where educators who are not in a position to satisfactorily perform their duties required of them or because of medical condition, such matters will be handled in terms of the LRA read in conjunction with the Employment of Educators Act viz. operational requirements and incapacity procedures.

“The latter provides that an employer is obliged to take an employee through the ordinary incapacity procedures which provide for a set of steps that an employer needs to follow to try and accommodate the educator in the work environment. Dismissal for operational and incapacity is regarded as the last resort,” he said.

But teachers who spoke to Independent Media this week alleged that the DBE was forcing them to take vaccines and this was downplayed after the media reports this week.

A Soweto teacher who requested anonymity for fear of reprisals said he had to take the jab because he was afraid of being accused of infecting kids if not vaccinated.

“I didn’t want to take it (the jab) but after hearing that the department might fire us for not vaccinating I decided to. The media reports to the effect that the government threatened us are very true. They are downplaying it after being exposed. But the fact is that they want us to take vaccines whether we want to or not,” he alleged

Another Orange Farm teacher also alleged they were threatened that those refusing to take vaccines won’t have a strong defence when facing dismissal. She said they were told that they pose a risk and threat to their colleagues.

However, Professional Educators’ Union (PEU) president Johannes Matona said the call by the DBE becomes parallel to what the president announced to the nation, and thus the threat is misplaced and irrelevant.

“It is for this reason that PEU and other teacher unions admitted to the ELRC rejected the draft Collective Agreement that would see the DBE carrying such threats to discipline teachers who refuse to vaccinate,” said Matona.

The National Professional Teachers’ Organisation of SA (Naptosa) Basil Manuel said the circular appeared before the unions when the department attempted to have a collective agreement around it.

“We raised all the problems that we still raise now and we will not be drawn into a collective agreement. They then went out and published the circular. It was nonsense for the department to demand that teachers should provide a reason if they were not vaccinated for medical purposes and provide certificates.

“That is absolute nonsense, particularly if you are at school and continue with your duties. That is not impacting on the employer and we don’t even believe that is legal,” he said.

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