In both South Africa and the US, business and educational establishments are left to develop their own policy views on COVID-19 vaccinations to address lagging vaccination statistics and the threat of another wave of COVID-19 infections.

Universities taking the lead

In South Africa, we are seeing universities take the lead by putting mandatory vaccination policies in place while awaiting legislative clarity on the state's role in COVID-19 vaccination mandates.

Universities in South Africa and across the globe are grappling with the challenges that have arisen with the COVID-19 pandemic. To ensure that teaching and learning continue without hindrance, some universities are planning to go back to contact learning while others opt for a hybrid system.

The University of Cape Town’s (UCT) Council intends to approve a proposal to make COVID-19 vaccinations mandatory for campus access. The proposal requires that all staff, as a condition of being able to perform their duties, and students, as a condition of registration, provide proof of vaccination against COVID-19.

Shortly after UCT tabled its policy, Rhodes University announced a move to make COVID-19 vaccinations mandatory for campus access in 2022. According to Rhodes University, individuals may be required to be vaccinated against COVID-19 following approval of a senate recommendation to that effect. These measures have been introduced in line with the university's obligation to ensure that its community is protected in terms of the Occupational Health and Safety Act 85 of 1993.

Challenges may arise in the implementation of mandatory vaccination policies in South Africa as legal considerations do not permit their blanket enforcement.

Universities must allow for objections based on religious, medical or other constitutional grounds.

To that end, Rhodes University has included a recommendation for exemption for those who cannot be vaccinated on justifiable grounds such as health and religion. However, any such exemption would not be condition free as those students and staff members need to produce regular negative COVID-19 test results in order to mitigate against the rise and spread of infections.

This debate is informed by the considerations in section 36 of the Constitution, which require a balance between the rights of individuals who choose not to be vaccinated or disclose their vaccination status, and the universities' obligation to ensure a safe working and learning environment.

There is no case law in South Africa on the issue at present and it remains to be seen how courts will view these competing rights.

Global approach

In an attempt to deal with these challenges, we look to how other jurisdictions have dealt with the matter, with a particular focus on the US.

The decisions in Smith v Biden [2021] U.S. Dist. LEXIS 215437 highlight that legislative imposition of COVID-19 vaccinations remains tricky territory, with the Appeal Court narrowing the enquiry into the state's mandatory COVID-19 vaccination orders as policy made in its capacity as an employer and not as a sovereign lawmaker.

This case addresses two executive orders issued by the presidency requiring COVID-19 vaccinations for the federal workforce and federal contractors, subject to exceptions required by law.

The executive orders were hotly opposed by a coalition of federal contractors, businesses, religious groups, and a handful of Republican states on the basis that the laws are unconstitutional and violate rights to privacy and liberty. After the court granted temporary injunctive relief in favour of the coalition, its final order vindicated the state’s actions, ruling that the balance of equities and public interest in stemming the spread of the rapidly mutating COVID-19 far outweigh the interests of individual federal employees and contractors.

International tertiary mandates

Turning to case law emanating from the tertiary education sector in the US, we look at Children's Health Def., Inc. v Rutgers Civil Action No. 21-15333 (ZNQ) (TJB) where the plaintiff sought to prevent the university from implementing a mandatory vaccination policy. The court had to determine whether the university's mandatory vaccination policy was unlawful and unconstitutional in that the policy required students to be vaccinated prior to returning to campus.

The court dismissed the application, noting that many students would be returning to campus and attending in-person classes and taking into account the considerable size of the student population. If the court were to grant the relief sought, thousands of students would be at risk of possible infection. The court further considered public interest which weighed in favour of mandatory vaccinations.

The mandatory vaccination policy for an Indiana university was challenged on the basis that it infringed upon the right to liberty, bodily autonomy, medical privacy, and religion, amongst other things, in the case of Klaasen et al v The Trustees of Indiana University Cause No. 1:21-CV-238 DRL. The policy required all students and staff to be fully vaccinated before returning to university. The court held that the enforcement of the vaccination policy was based on the legitimate interest of promoting the health and safety of those under the care of the university. The court held that there is a reasonable accommodation which caters for religious rights of individuals and therefore the policy was found to be both lawful and constitutional.

Drawing from the principles of the decisions discussed above, UCT and Rhodes University's decisions to implement their mandatory vaccination policies is consistent with trends seen in the US, provided that they do not unreasonably infringe on the constitutional rights of those involved.

These policies should resemble those implemented by employers in line with the Directive of the Department of Employment and Labour on 11 June 2021, which requires an establishment to conduct a risk assessment and ensure that there is reasonable accommodation for those categories of students and staff who elect not to be vaccinated or to disclose their vaccination status on grounds of health or religion.

Importantly, the provisions of the Protection of Personal Information Act 4 of 2013 must always be adhered to by any institution, as they will be required to process vaccine-related medical information, which constitutes special personal information, of students and staff.