Criminal sanction and dismissal for failure to comply with mandatory vaccination and dissemination of false news regarding vaccine efficacy

The COVID-19 pandemic has been the most significant global public health issue in recent memory, and certainly the most serious in terms of its global effect after the HIV/AIDS epidemic that first surfaced in the 1980s.

6 Mar 2023 3 min read Employment Law Alert Article

At a glance

  • COVID-19 vaccines have been deemed safe and effective by medical authorities, but vaccine hesitancy persists due to misinformation.
  • South Africa has regulations making it an offense to spread deceptive information about COVID-19.
  • Brazil is considering laws that would make it a crime to refuse mandatory vaccination or spread false information about vaccines, raising concerns about freedom of speech and individual agency.

The urgency to obtain a medical intervention that would save people from severe illness, hospitalisation, and death as a result of a COVID-19 infection came in the form of a vaccine. Since the rollout of COVID-19 vaccines, there has been broad medical consensus that the relevant COVID-19 vaccines are safe for use, including by state medical regulatory authorities. Despite this, there was and continues to be reluctance on the part of many people who doubt the safety and efficacy of the vaccine based on sources of information that constitute misinformation and which do not reflect the consensus of the medical fraternity, the World Health Organization, and local public health and medical organisations and regulatory bodies.

In South Africa, section 11(5) of the Regulations issued by the Minister of Cooperative Governance and Traditional Affairs, in terms of section 27(2) of the Disaster Management Act 57 of 2002, on 18 March 2020 during the height of the COVID-19 pandemic, made it an offence for any person to publish any statement with the intention to deceive any other person about COVID-19, including any measure taken by the Government to address COVID-19.

In Brazil, a series of bills are before congress that seek to classify as a crime, punishable with imprisonment, the conduct of failing to submit, without just cause to mandatory vaccination in a public health emergency, such as COVID-19, as well as to criminalise the creation, dissemination or propagation of false news about vaccines or, in any way, discourage vaccination. If enacted, these laws will implement a radical legal approach to the problem of vaccine hesitancy and the circulation of false news and information not corroborated by medical consensus in relation to vaccines. While such laws may inhibit the dissemination of misinformation on vaccines and increase the uptake of vaccination, they do have a direct implication on freedom of speech and on a person’s agency to determine what medical interventions they are comfortable acceding to.

In the South African context, a middle ground was struck in the employment context where an employer is entitled to institute a mandatory vaccination policy after conducting a risk assessment and making a determination that mandatory vaccination is required in terms of securing a safe working environment and in respect of its operational requirements. In the event of an employee who objects to vaccinate on constitutional or valid medical grounds, and if after due consideration, the employer is unable to accommodate the employee, then the employer may proceed to terminate employment. However, despite this process that allows for a mandatory vaccination policy by employers, there has regrettably been an uneven and inconsistent approach by the Commission for Conciliation, Mediation and Arbitration (CCMA) in arbitrating dismissals due to a refusal to comply with a mandatory vaccination policy over the last year.

Despite a reduction in severe cases of COVID-19 globally, and the opening up of the world over the last 12 months, the use of vaccines as a first line of defence against serious illness and the spread of COVID-19 is still current. The lessons learnt from this experience will definitely inform lawmakers, public health officials, and government strategies in relation to important future public health issues including, but not limited to, the spread of infectious diseases.

We now wait patiently as the CCMA arbitration awards work their way into the Labour Court system to determine how the courts will deal with dismissals related to vaccine refusals.

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