Mandatory Vaccinations in the Workplace: Lessons for the Next Pandemic

Abstract

The World Health Organization (‘WHO’) declared the SARS-CoV-2 (‘COVID-19’) outbreak a pandemic on 11 March 2020. The South African government took heed of the WHO’s response principles and declared, per section 27(5)(c) of the Disaster Management Act 57 of 2002 (‘DMA’), a National State of Disaster (‘NSD’) on 15 March 2020. Various countries responded to the COVID-19 pandemic (‘the pandemic’) by mandating the vaccination of their workforce in designated labour industries. Inversely, the South African government opted for an intermediate approach by neither mandating nor prohibiting the mandating of COVID-19 vaccination. Instead, the government gave employers the statutory regulated discretion, in accordance with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces in GN 499 GG 44700 of 11 June 2021 (‘the Direction’), on whether to mandate employee vaccination. The pandemic underscored vaccine hesitancy and reshaped vaccine policies, resulting in occupational and socioeconomic implications for unvaccinated employees. I analyse these implications, vaccine hesitancy, and the regulation of occupational vaccine mandates. Legal development – premised on lessons drawn from the pandemic – can be observed globally. South Africa would be well-placed to keep up with global legal developments when deliberating on prospective occupational vaccine policies. I, therefore, consider international law, South African law, and the foreign laws of Australia, New Zealand (‘NZ’), and the United States of America (‘U.S.’) to draw lessons from the pandemic and inform vaccine policies in preparation for the next pandemic. I assess to what extent these legal developments have balanced public health with labour stakeholders’ competing interests, rights, and duties (‘the balance’).