Compensation for adverse side effects to mandatory vaccinations

by Carla Koutroulis. Recently, there have been various social media posts declaring that any mandatory vaccination policies have been stopped in their tracks, and that institutions mandating the vaccine for COVID-19, were liable. This was after new guidelines that were issued regarding the compensation for adverse side effects, where an employee is vaccinated as a result of a mandatory vaccination policy.

In our previous Retailing Africa article, Mandatory vaccination policies in the workplace, we described the manner in which employers could implement mandatory vaccination policies in the workplace, after conducting the relevant risk assessment amongst its employees. It is important to understand the implications of the announcement which followed, regarding compensation for adverse side effects, and further, to filter any potential false or “fake news” and inflammatory social media posts. The publication in question is a notice published in the Government Gazette on October 22, 2021, by the Compensation Fund Commissioner. This notice stated that the Compensation Fund would compensate employees, who experience any “injuries, illness or death”,  as a result of receiving a COVID-19 vaccination.

The Compensation Fund will, however, only compensate employees who receive a COVID-19 vaccination, either as a result of the inherent requirements of their employment or, subject to an Occupational Health and Safety risk assessment conducted by the employer. In order to implement a mandatory vaccination policy, an employer must first conduct a risk assessment in the workplace.

For a claim relating to adverse side effects to be successful, the following applies:

• 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.
• Evidence must be provided of the employer’s Risk Assessment and Vaccination Plan, as set out in paragraph 3(1)(a)(i)(ii) and (b) of the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces, dated 28 May 2021.
• 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 a COVID-19 vaccine.
• Additional tests may be required to assess the presence of abnormalities of any organ affected.

As can be seen from the requirements above, there are certain hoops to jump through in order to make a claim, and a compensation claim is not automatic should there be any adverse side effects. Social media posts can be inflammatory, as the wording chosen is often intentionally provoking, referencing that there will be compensation for death; and further indicating that as a result of this compensation, that no employer will be able to implement mandatory vaccination policies.

Clear guidelines

It is important to clarify the true set of circumstances when one sees any such posts on social media. From the guidelines it is clear that:

1. Employers may continue to implement mandatory vaccination policies in the workplace, provided that this is done so in the manner prescribed in the guidelines (including the conducting of a risk assessment).
2. An employee that experiences an adverse reaction to a vaccine that they obtain, as a result of a mandatory vaccination policy, is entitled to submit a claim to the Compensation Fund.
3. The employee will have to prove that the adverse reaction is causally linked to the vaccine.
4. The compensation paid, if any, will be from the Compensation Fund, not from the employer directly.

Due to the fact that the compensation received is from the Compensation Fund, and not from the employer or institution directly, it is hard to say that this notice effectively stops mandatory vaccination policies in their tracks, as touted by social media posts. It is unlikely that this notice regarding compensation will have any change in an employer’s decision to implement such policies, especially where the operational requirements or risk assessment indicate that such mandatory policy is required.

Social media users are reminded against spreading false or fake news; and to always ensure that any information that they may be sharing with their followers is verified, and that they obtain the full picture of the information being shared – as can be seen there is often more to the story.

Main image credit: Photo by Shridhar Gupta on Unsplash.

Carla Koutroulis is a Senior Associate at Consilium Legal, a boutique legal and business advisory.

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