Talita Laubscher, a partner at Bowmans office of Employment & Benefits Practice in Johannesburg, and Melissa Cogger, a senior associate at Cape Town office of Employment and Benefits practice.
Some employers implementing their vaccination policies are being met with resistance from employees or anti-vaccination groups together with threats of civil and criminal liability. A few have received a ‘notice of liability with a request to sign an indemnity in terms of which the employer agrees to be held liable in the event of an injury from vaccination.
In our view, it is not necessary for employers to sign an indemnity agreement in exchange for an employee’s agreement to vaccinate. Compensation is available to individuals (or their dependents) if they suffer an injury, illness or death as a result of an SAHPRA-approved COVID-19 vaccine.
Details of the compensation available to employees are outlined below, as is a view on whether an employee may have a civil claim or lay a criminal charge against an employer for implementing a vaccination requirement in the workplace.
Compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA)
According to the ‘Notice on Compensation for COVID-19 Vaccination Side-Effects’ published in terms of section 6A(b) of COIDA (Notice) the Compensation Fund will cover employees for injuries, illness or death as a result of receiving a COVID-19 vaccine where the employee was required by the employer to receive the vaccination as an inherent requirement of employment, or where vaccination is required based on the Occupational Health and Safety Risk Assessment conducted by the employer.
In order for compensation to be payable:
- the vaccination must be regarded as an inherent requirement of the job as determined by the employer’s risk assessment;
- the employee must have been vaccinated with a SAHPRA-approved COVID-19 vaccine;
- to the extent required, the evidence must be provided of the employer’s risk assessment and vaccination plan;
- the chronological sequence between the vaccine inoculation and the development of symptoms and clinical signs must be provided;
- the employee must have presented with symptoms and clinical signs that are generally recognised as side effects of the COVID-19 vaccine; and
- additional tests may be required to assess the presence of abnormalities of any organ affected.
It is a well-established principle that, if compensation is payable in terms of COIDA, the employee has no claim for civil damages against the employer, because the common law right to claim damages is substituted in terms of section 35 of COIDA.
In order to submit a claim for compensation in terms of COIDA, there is no need for an employee to prove fault on the part of the employer. Fault is however relevant if the employer was negligent, which may entitle an employee to claim increased compensation.
The COVID-19 Vaccination Injury No-Fault Compensation Scheme
The COVID-19 Vaccination Injury No-Fault Compensation Scheme (Scheme) was established by the Disaster Management Act Regulations and continues to apply even now that the National State of Disaster has ended. It was established to provide expeditious and easy access to compensation for persons who suffer harm, loss or damage as a result of a vaccine injury.
Directions were gazetted on 4 April 2022 and relate to the administration and operation of the Scheme, including the lodging of claims for compensation and the quantification of such claims. The Scheme will not be terminated until the period for the lodgement of claims with the Scheme has expired and all claims lodged with the Scheme have been finalised.
Vaccine injuries that are covered by the Scheme are ‘serious injuries resulting in permanent physical or mental impairment, temporary physical or mental impairment, or death. Persons eligible to claim compensation in terms of the Scheme are those who have suffered a serious vaccine injury resulting from the administration of an applicable vaccine at an official vaccination site, or their dependents who have suffered harm, loss or damage caused by the death of the deceased person.
If the eligible person lacks full capacity, a person duly authorised to act on behalf of the eligible person may lodge a claim for compensation.
In terms of the process to lodge a claim for compensation, if an individual presents with ‘any untoward medical occurrence’ (AEFI) after vaccination, such AEFI must be reported to the National Immunisation Safety Expert Committee (NISEC) within 30 days for investigation. An eligible person will be informed in writing of the outcome of a NISEC causality assessment, which will include a recommendation on whether the claimant’s vaccine injury meets the requirements of causation. Thereafter a claim for compensation must be lodged within 30 days. The Scheme Administrator will assist the claimant with the lodging of a claim.
A person who has submitted a claim for compensation under COIDA for a vaccine injury shall not be eligible for compensation in terms of the Scheme.
Any person who elects to submit a claim to the Scheme waives and abandons their right to institute legal proceedings in a court against any party for a claim arising from harm, loss or damage allegedly caused by a vaccine injury.
Since the Scheme does not require fault to be proven (it requires causation) and since it is intended that processing a claim will be more cost effective and expeditious than civil proceedings, the Scheme may be the more attractive option for a claimant or their dependants. Whether claimants choose to submit a claim for compensation in terms of the Scheme rather than to litigate will, in our view, be dependent on the cost effectiveness, accessibility, timeous claims process and the extent of the loss suffered.
Possible delictual liability
In the event that a claimant or their dependents do not meet the requirements for a claim for compensation in terms of COIDA, or they elect not to claim from the Scheme, a claimant or their dependants may still have a claim for civil damages including for pain, suffering and loss of amenities of life in delict against the employer.
However, in order to be successful in such a claim, all of the elements of a delict will need to be proven, i.e. (a) conduct; (b) wrongfulness; (c) causation; (d) fault; and (e) loss/harm.
In our considered view, such a claim would have low prospects of success as the elements of wrongfulness and causation would be difficult to establish. We believe that a court would be slow to find a vaccination policy in the workplace to be wrongful, particularly taking into account the employer’s obligations in terms of the Occupational Health and Safety Act, 1993 (OHSA) and the Hazardous Biological Agents Regulations as well as the mainstream science on the benefits of vaccination compared to the low risk of adverse events.
A further consideration would be that many of the vaccine requirements do not, ultimately, force employees to vaccinate. In most cases, employees are free to choose not to vaccinate, with vaccination policies regulating the employment consequences of an employee’s choice.
Possible criminal liability
Documents circulating in anti-vaccination groups and which have been submitted to employers as part of employees’ objection proceedings include allegations that vaccination policies or ‘forced vaccinations’ amount to crimes, including crimes against humanity, assault with intent to do grievous bodily harm, murder or culpable homicide.
In our view, the possibility of a vaccination requirement in the workplace amounting to a criminal offence by a director, official or senior employee of a company is remote and unlikely, assuming of course that the employer implemented the requirement in compliance with its legal obligations – thus, in terms of its duty to establish and maintain a safe working environment, on the basis of a proper risk assessment, and with due regard to the scientific and medical evidence at the time.
In these circumstances, intent to harm employees would be difficult to prove. Even if an argument of dolus eventualis is made (i.e. that the individual accused foresaw the possibility of an employee’s death from the vaccine but nevertheless went ahead in approving/implementing the policy), we think that this possibility is likely to be found to be too remote.
We also do not consider a vaccination requirement to amount to culpable homicide if it is introduced in accordance with the applicable legal principles and on the basis of scientific and medical evidence, as it is unlikely to meet the test required to prove negligence.