Compensation For COVID-19 Vaccination Side Effects

President Ramaphosa, during September 2021, announced government’s intent to introduce a ‘vaccine passport’ system.  The President’s message was not unexpected as it was in line with policy statements from other countries. Coupled with this is the increasing international trend of businesses making COVID-19 vaccinations mandatory in the workplace, in compliance with relevant legislation.

The issue of demanding that employees are vaccinated remains a hotly contested debate in South Africa. The courts are yet to provide an opinion on the constitutionality of this approach.

It emerges from public debates that the reluctance of many people to vaccinate is because of the possible side effects that individuals may suffer as a result of undergoing vaccinations.

In this regard, on 18 August 2021, the Compensation Commissioner, issued a notice on compensation for COVID-19 vaccination side effects. It announced that companies who make COVID-19 vaccinations mandatory for their employees may claim from the Workmen’s Compensation Commission for their employees in the event that the employees suffer injury and/or illness or death as a result of taking the vaccination.

In summary, this compensation will be subject to the following requirements:

1. After conducting a risk assessment, the employer must have determined that the vaccination is regarded as an inherent requirement of the position.
2. The compensation fund will cover those who received the vaccine at sites approved by the South African Health Product Regulatory Authority.
3. The employer will have to provide evidence of its risk assessment and vaccination plan, as stipulated in paragraph 3(1)(a)(i)(ii) and (b)of the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces (28 May 2021).
4. The employee must present with symptoms and clinical signs that are recognisable side effects of the vaccine, and the chronological sequence between the vaccination and the development of symptoms and clinical signs will have to be proven.
5. Additional tests may be required in order to assess the presence of abnormalities of any organ affected by the vaccine.
6. The company must be registered with the Workmen’s Compensation Fund.
7. Any claim submitted, and the compensation due, will be determined in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended, together with the Guidelines of the Compensation Fund.

In terms of the notice dated 18 August 2021, compensation will only apply to employees who were identified by the employer to undergo the vaccination and/or where a vaccination is an inherent requirement of the position that the employee fills —this means that an employee who undergoes a vaccination of their own accord will not be covered by the fund if they suffer any adverse effects of the vaccination.

In providing some perspective on the adverse effects of the COVID-19 vaccination, according to the South African Health Product Regulatory Authority data:

• 139 deaths were reported following the vaccination between 17 May 2021 and 15 October 2021.
• It was determined that 90 of the 139 deaths were coincidental.
• 50 of the deaths were due to the COVID-19 virus.
• 2 of the deaths were due to breakthrough infections.
• Out of the 139 deaths, 14 were unclassified, i.e. the cause of death could not be confirmed.

Given the above legal position, the correctness of newspaper articles claiming that companies that make vaccines mandatory for their employees are liable to compensate such employees in the event that they suffer side effects of the vaccine is questionable, and does not appear to be legally sound.