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South Africa is well underway with its vaccination roll-out program, as vaccinations head towards the age group of 18 years old and above. This effectively means by the end of 2021 the labour force, in economic terms, will be afforded an opportunity to choose to vaccinate or not. In addition to the above, the Protection of Personal Information Act 4 of 2013 (“POPIA”) has come into effect as of 1 July 2020.  Considering the above, what does this mean for you as an employee in terms of your rights to privacy regarding your vaccination status?

POPIA provides for the protection of personal information processed by public and private bodies. POPIA defines ‘personal information’, but it also creates a further category for ‘special personal information’.

‘Personal information’ is defined in POPIA as information relating to race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person. Aspects such as criminal status and employment history, residential and postal addresses, contact numbers and biometric information are also included under the definition. Such information may be processed by an employee under POPIA.

Given the sensitive nature of a person’s vaccination status, naturally it should be afforded a higher degree of protection. Section 26 of POPIA prohibits the processing of ‘special personal information’ unless consent is provided. This information relates to health related-matters, religious or philosophical beliefs, trade union membership, sex life and political affiliation.  An employee’s vaccination status would therefore constitute ‘special personal information’ as it would fall under a ‘health related-matter’ and consent by an employee would be required for an employer to process such information.

Considering the above, the question posed by an employer to an employee, or applicant for employment, on whether he or she has been vaccinated may arise. There are several reasons why an employer may legitimately require such information. So, can an employer require an employee to disclose their vaccination status? Can employees object to the request?

At this point in time, there is no law which mandates employees to disclose their vaccination status. As vaccinations are a voluntary act in South Africa, and assuming the employer does not have a mandatory policy in the workplace, this means the issue will be regulated by the law of privacy and specifically POPIA. The same would apply where the imposition of a mandatory vaccination policy in the workplace exists. Under POPIA this information can only be provided to the employer with consent from the employee.

Planning around this subject would require consultation by the employer with its employees, input and direction from the Information Officer and intricate involvement by the Human Resources division of the employer. In conclusion this will most likely unravel into a contentious topic as South African regulators navigate around POPIA and the Covid-19 vaccination roll-out process.

— Refiloe Vengeni, Partner.