South Africa: options for employees injured by vaccinations

Compensation is available to individuals (or their dependents) if they suffer an injury, illness or death as a result of a South African Health Products Regulatory Authority (SAHPRA)-approved covid-19 vaccine. If claimants or their dependents do not meet the requirements for a claim for compensation under the relevant fund or scheme or they elect not to claim, employees or their dependants may seek to bring a claim for civil damages against the employer.

Some employees have even gone so far as to allege their employers’ vaccination policies amount to criminal offences. However, for the reasons discussed below, we think such claims would have little to no prospects of success.

Statute

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, 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. 

If compensation is payable pursuant to the Compensation for Occupational Injuries and Diseases Act,1993 (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. 

No-Fault Compensation Scheme

The covid-19 Vaccination Injury No-Fault Compensation Scheme was established by the Disaster Management Act Regulations to provide expeditious and easy access to compensation for persons who suffer harm, loss or damage as a result of a vaccine injury.

Vaccine injuries 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’ after vaccination, it 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 is not eligible for compensation in terms of the scheme.

Those who elect to submit claims to the scheme waive and abandon their rights 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.

Possible delictual liability

If claimants 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, they 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.

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. This is based on the assumption that the employer implemented the requirement 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.

Talita Laubscher is a partner and Melissa Cogger is a senior associate at Bowmans South Africa bowmanslaw.com