Vaccine mandates create situations that compel people to get vaccinated by limiting their access to particular services or activities, but still leave individuals with the choice to get vaccinated or not.

COVID-19 vaccine mandates should be considered important and effective public health interventions by government, but individuals would still have a choice whether to get vaccinated or not, says public health lawyer Safura Abdool Karim

“Vaccine mandates don’t mean you are necessarily forced but refer to any type of policy law or regulation that creates situations for people to get vaccinated by either limiting their access to particular services, or preventing them from doing or engaging in certain kinds of activities if they are not vaccinated,” she explains.

“If it’s not a regulation that is enforced by the government, then it immediately means that this is not something that applies to everyone, it applies to a group of people who are seeking to access a product or a service from a private actor. This still gives the individual a level of choice.”

Several private companies such as Discovery and Naspers, as well as institutions of higher learning in the Western Cape, have started enforcing vaccine mandates.

Public interest vs individual rights

The University of the Western Cape (UWC) approved what it terms a “soft mandate” on 25 November. The institution announced that it would apply the soft mandate for all staff and students to be vaccinated to enter the campus or attend any university events.

“Students who are not vaccinated will be permitted to register for their relevant degree or module, but may not enter the campus or attend university events. This rule will also be strictly applied to the placement of students at all UWC residences. The soft mandate may not apply to students and staff in certain faculties or programmes, like the Faculty of Dentistry, and programmes such as Nursing and Pharmacy. In such instances, the hard mandate will apply,” read the announcement.

Abdool Karim explains the horizontal relationship of rights that individuals have with private institutions, which allows them to constitutionally bar entry into the facility as an incentive to encourage people to get vaccinated.

“Because you’re a private individual, the duties you owe to me as another private individual are much lesser. And so when you infringe my rights, or when you do something that doesn’t protect my rights, the likelihood of me having a successful claim against you goes down. That is the first difference between a government-level mandate and one by a private actor. So it’s easier for a private actor vaccine mandate to be found constitutional compared to a government one, because the standard through which it’s assessed is less.”

Unvaccinated people compromise others

Earlier this week, the National Institute for Communicable Diseases (NICD) reported that 87% of patients admitted to hospitals in Tshwane are not vaccinated against COVID-19. Abdool Karim said this reflects a direct link between people’s decision not to get vaccinated and other people’s ability to access quality healthcare services.

“Unvaccinated people pose an extremely high burden on the healthcare system. Every ICU bed they take is an ICU bed that cannot be used by somebody else. And it’s an ICU bed that possibly didn’t need to be taken out, had the person been vaccinated. And in that sense, you’re compromising other people’s bodily integrity, other people’s health, and other people’s right to life. We have also seen that during COVID-19, the courts have said that these countervailing rights of public health and public interest are way stronger than individual rights, and that individual rights can be justifiably limited in the context of this pandemic. So, a balancing act needs to happen when considering where rights fall with mandates.”

No government-issued mandates for now

Abdool Karim notes that it is important for government to intervene in the enforcement of vaccine mandates for them to reach people who can access services and work outside of the private sector.

“The government is going to need to curtail access to certain public services for the vaccine mandates to be effective. This will ensure that there is consistency in the mandate policies of the country. Most of the vaccine mandates have been done in the workplace. A large section of this country works in the informal sector, that’s not going to have vaccine mandates, or they’re unemployed, and they haven’t been subjected to a mandate for that reason. So the government’s intervention is necessary to reach those people,” she said.

Health minister, Dr Joe Phaahla, says that there will be no mandates issued centrally by the government. However, government will be supportive of any sector of business, civil society, institutions of learning and other institutions that do so.

“On the recommendation of the Coronavirus Council, the cabinet has agreed that our approach is to support all institutions that decide to take such a decision for the health and safety of their staff, students, customers, or clients. That is why we developed the vaccine certificate which we are improving in terms of reliability, quality and security.”

The minister added that the cabinet is expecting proposals from the committee, made up of heads of departments, on how to begin phasing in mandates and looking at the areas of social and business activity that would be best to enforce mandatory vaccinations.

Vaccine mandates at universities and the workplace

The University of Free State is one such institution of higher learning that approved a vaccination policy for the institution on 26 November.

Vice-Chancellor and Rector Prof Francis Peterson assured staff and students that the policy aims to regulate the access of staff, ad hoc contract workers and students on the university’s premises, and not to force people into vaccination.

Discovery has a 95% vaccine rate among staff after implementing vaccine mandate in September. https://t.co/IyIhApKopx

— Narissa Subramoney (@NarissaS3) December 2, 2021

“The policy will be implemented as from 14 February 2022. The policy implies that the university does not force anyone to be vaccinated, but the institution has the right to require vaccination if you want to access the institution’s premises to protect our staff and students,” he said.

Section 24 of the Constitution of South Africa is the grounding premise that is common in vaccine mandates enforced by workplaces and other businesses in the private sector. The section indicates that everyone has the right to be in an environment that is not harmful to their health and wellbeing. They also have the right to have the environment protected for the benefit of present and future generations.

Exemptions: Drawing the line

“Any vaccine mandate policy has to have exemptions. There are always going to be groups of people who cannot take a vaccine. These are the people who might have a fatal allergic reaction or immunocompromised people. So there needs to be some provision,” explains Abdool Karim.

She emphasises the importance for government to determine the threshold of the exceptions that will be allowed.

“There is a need to set that threshold and say this is the minimum of what a vaccine mandate should look like. It should be clear which are the recognised exemptions that are willing to be accepted for public health reasons, and which ones are not.

“It can also vary from industry to industry because the stringency of a vaccine mandate for a healthcare setting should be radically different to somebody like me, who works in an office job. So there is a need to factor that in, where you can justify more stringent mandates where people are at high risk, and you can justify less stringent mandates when people are at low risk.”

Abdool Karim concludes that vaccine mandates play a very important public health purpose. However, there is still a lack of certainty that has to be addressed by government before we can move forward. – Health-e News