First published in the Daily Maverick 168 weekly newspaper.

Mandatory Covid-19 vaccinations is a contentious issue. The discourse in the media has been mainly framed as tension between the right to a public good and the protection of individual rights. The right to health is presented as binary: either as the right to protection from infection by unvaccinated persons or the individual’s right to control their body.

The substitution of the highly abstract “individual” by the more specific “employee”, changes the context of the proposed mandatory vaccinations.

The legal definitions of “patient” and “employee” and their respective rights and obligations are different. A patient’s control of their body is guaranteed and only violated in specific situations, whereas an employee has essentially ceded control of their body to the employer via the employment contract.

Vaccines in occupational health

Vaccines play an important role in occupational health. Many categories of workers, for example waste-water treatment workers, are exposed to a host of hazardous biological agents. Vaccines are routinely used to protect their health. While the same is necessary for Covid-19, the resistance by some to accepting the vaccinations should draw our attention to the specific issues of occupational health ethics because an important factor causing vaccine hesitancy is the phenomenon of “trust deficit”.

OHS as a disciplinary tool

Many workers have a deep-seated mistrust of their employers based on their experience, and more relevantly, the manner in which Occupational Health and Safety (OHS) is managed in the workplace. Many workers see it as a disciplinary tool. Further, the OHS system routinely downplays the health issues that employees raise and instead blames them for poor OHS performance.

Unequal OHS protections

The OHS law is fragmented and unequal. Employees in industrial (non-security) sectors have different rights and protections under three Acts mandating OHS services. Further, different occupational medical procedures with respect to medical surveillance and testing are in place in various sectors. Many do not have promulgated medical fitness standards even though workers are subjected to these mandatory tests. Employees may lose their employment when they fail these tests, and the reporting of suspected cases of occupational illness to the Compensation Commissioner is not satisfactory.

The ethical framework

The National Health Act acknowledges two scenarios where a person may receive medical treatment. The first is where a private person needs a medical service and the requirement to protect the autonomy and human dignity of this person is outlined. The second is when medical researchers want to conduct tests on human subjects. Here, too, the rights and protections of human participants have been clearly outlined. The employment medical scenario has not been explicitly defined. There is therefore a gap in our current framework of medical ethics.

In the employment context, the employer chooses the medical examiner, who determines the scope of the examination and the evaluation criteria where no promulgated standards exist. The employee is expected to submit or face sanctions, including possible dismissal.

Ethical issues

Medical interventions are commonly evaluated ethically using principlism and its four categories: autonomy, beneficence, nonmaleficence and justice. The debate in the media has sought to justify the imposition of mandatory Covid-19 vaccinations within the moral boundaries set by the Constitution. The strident demands for mandatory vaccinations clearly shows that such an imposition on the general public is not without issues. When viewed from the perspective of the employee, the ethical issues become extremely problematic.

Autonomy

Autonomy is the recognition of each persons’ self-rule, ensuring participation of the person in planning of services that they may receive and respecting the person’s choice. Autonomous actions are voluntary because the person knows what alternate actions are possible. They are responsible for the consequences of their choices. Some options are imprudent and could result in loss of income and even loss of employment for the average employee who refuses to be vaccinated. Mandatory vaccinations in occupational context of SA amount to a non-voluntary action on the part of the employee and they have no reasonable option other than to submit.

Beneficence

Vaccines are undeniably beneficial to the person being vaccinated and society at large.

In the occupational context, the balance of benefits can reasonably be assumed to be already skewed in favour of the employer. This is especially the case in exploitative employment situations where the body of the employee is essentially a means for the employers ends. The demand for mandatory vaccinations of employees may be tipping the already imbalanced power relationship further in favour of the employer.

Nonmaleficence

The subjection of a person to a non-voluntary action is inherently a violation of their human dignity and is a form of violence that results in harm.

Justice

Ethical evaluations of justice, from a distributive perspective, relate to the efficient and fair allocation of limited resources. A Covid-19 response budget will need to provide for a wide range of measures, including education programmes; environmental monitoring; voluntary testing and the provision of all the standard controls such as improved ventilation, personal protective equipment and the vaccination programme itself.

An alternate approach

The need to close the gap in our framework of ethics is a critical must-do. We must adopt a model of OHS that provides the paradigm for when such ethics can be operationalised. An alternate view is for OHS to be seen as a service, with employees as its primary clients.

Conclusion

The right of employees to control their bodies, their most valuable property, must be acknowledged in our bioethical framework. This invisibility of workers must end. The development of an ethical dispensation based on the collective rights of workers must be made a priority of both employees and employers. DM168

Warren Manning is an occupational health and safety practitioner at Izwe Lethu Environmental Solutions.

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.