The case for religious exemptions to taking the vaccine

Advocate Nadene Badenhorst legal counsel for Freedom of Religion South Africa (FOR SA) probes the issue of vaccine mandates and freedom of religion

*Note:  As an organisation, Freedom of Religion South Africa (FOR SA) is not for, or against, vaccination but believes it is the right of every individual to choose for themselves whether (or not) to take the vaccine, and also to express their beliefs or opinions in this regard.  

It should be noted that the entire area of vaccinations and vaccination mandates is very fluid. Scientific studies have proven that COVID-19 vaccinations are very effective in preventing serious health consequences (including hospitalisation and death).  Equally, studies have shown that vaccinations do not prevent people from contracting COVID-19, nor from them transmitting this disease to others.  It is also clear that certain demographics are more vulnerable (e.g. over 65 years old with co-morbidities), whereas others are virtually immune to adverse consequences (e.g. children under 10 years old).  There are also therapeutic and anti-retroviral treatments for COVID-19 which potentially have similar, positive effects to vaccinations in preventing severe health consequences.  It is equally true that millions of South Africans have already contracted (and recovered from) COVID-19, and studies show that their natural immunity is basically on a par with (and may even be superior to) the immunity generated by vaccinations.  All these may well be factors which will be argued in any case contesting mandatory vaccination policies. 

However, the interests of FOR SA as expressed in this article are limited to the extent that religious freedom rights may be involved, and be a factor in, those who do not wish to comply with such mandates.

Introduction

In his address to the nation on February 1 2021 (the day when the COVID-19 vaccines first arrived in South Africa), President Ramaphosa stated as follows: “It is in the best interests of all that as many of us receive the vaccine as possible. But I want to be clear. Nobody will be forced to take this vaccine. Nobody will be forbidden from travelling, from enrolling at school, or from taking part in any public activity if they have not been vaccinated. Nobody will be given this vaccine against their will, nor will the vaccine be administered in secret.”

This sentiment was echoed by the Minister of Health on 8 October 2021, in response to a direct question by an IFP Member of Parliament on the issue of mandatory vaccination – except, this time, it had a caveat attached to it: “While the State has no intention to make vaccination mandatory, we also have no intention to interfere in internal policies of private and independent institutions, including on the public health policies”. (our emphasis)

Most recently, the president – in his address to the nation last Sunday evening – announced that government has been “undertaking engagements with social partners and other stakeholders on introducing measures that make vaccination a condition for access to workplaces, public events, public transport and public establishments”.

While government has not (yet) passed a mandatory vaccination law “for specific activities and locations”, the reality is that South Africans are increasingly feeling the pressure to be vaccinated, “or else …”.  Increasingly, educational institutions are considering mandatory vaccination policies, requiring the vaccine as a condition for access to campus (and in some instances, to independent schools). Proof of vaccination is also being required to attend certain cultural events or concerts.  Increasingly, private employers are requiring their employees to be vaccinated, with government itself considering mandatory vaccinations for government workers. Most recently also, government announced that – as part of government’s “It Is In Your Hands” campaign – vaccinated persons will “receive priority” regarding the attendance of sporting, arts, culture and recreational events.

It is, therefore, not surprising that FOR SA is increasingly receiving queries from persons of faith wanting to raise a “religious objection” to mandatory vaccination policies (on campus, or in their workplace). Objections range from claims that the “body is a temple” (1 Corinthians 6:19) and that the vaccine somehow defiles the Holy Spirit’s dwelling, to claims that the vaccine is “the mark of the beast” (Revelation 13:16). Others claim that – because (at least some of) the vaccines were developed using foetal cell lines that could be traced back to an aborted human life some 50 years ago – by taking the vaccine, they are complicit in abortion. Others claim that vaccination is a personal choice and that no one should, therefore, be forced (by government, or anyone else) to take the vaccine.

Religious freedom

Section 15 of the Constitution guarantees the right to freedom of conscience, religion, thought, belief and opinion (“religious freedom”). This right includes the right to not only believe whatever you want (or do not want) to believe, but also to freely share and live out your religious beliefs. Our Constitutional Court has also on various occasions already stated that the right to religious freedom includes freedom from coercion or constraint that might force people to act (or not to act) in a manner contrary to their religious beliefs.

Section 9 further states that no one (whether the state, a private organisation or person) may unfairly discriminate against anyone else on grounds of, among other things, conscience, religion and belief.

Based on these fundamental rights, it may (in certain circumstances) be possible to argue for a “religious exemption” from a law or policy to which you would otherwise be subject. In other words, it may be possible to argue that your conscience, religion or belief prohibits you from doing, or not doing, something that the law or policy might otherwise demand.

In making out a case for “religious exemption”, you would generally have to show that you have a genuine or sincere objection to the law or policy based upon your religious convictions and beliefs. In other words, the objection cannot be based on medical / health, philosophical, political or cultural grounds (although it may be a difficult line to draw), and definitely not on any “conspiracy theory” (regardless of how popular). Also, religious objection cannot be claimed simply because you feel “uncertain” about or “uncomfortable” with the vaccine, or want to adopt a “wait and see” approach. A belief that taking a vaccine is unwise or potentially harmful will normally be considered a medical or health objection – not a religious objection.  

In proving the sincerity of the religious objection, it is not necessary to prove that the church or faith group to whom you belong holds to the same religious objection.  That said, a written letter from a religious leader may in some instances assist in proving the sincerity of your religious objection. What is important, is the ability to prove the sincerity of your own personal religious beliefs.

The conduct of an individual (student, or employee) which appears to be inconsistent with the religious beliefs underlying his/her “religious objection” to the vaccine, may undermine his/her objection. An example of this would be where the individual claims that his/her body is a “temple of the Holy Spirit” but ingests other medications, foods, or substances with potentially harmful effects.

Balancing of rights, and reasonable accommodation

Assuming you succeed in proving the sincerity of your religious conviction, this may not be conclusive since (as mentioned above) s 36 of the Constitution allows any right to be limited if it is reasonable and justifiable to do so taking into account a number of factors, including the reason for, and extent of, the limitation . Ultimately, it comes down to a balancing of rights to evaluate which right, in a particular instance, should enjoy (greater) priority.

In the context of Covid-19, therefore, the individual (student’s, or employee’s) right to religious freedom would have to be balanced against the organisation’s (whether the educational institution’s, or employer’s) right – and arguably, responsibility – to put policies etc. in place to ensure maximum health and safety for all (students, or employees). In the context of the workplace, for example, the Occupational Health and Safety Act (OHSA) obliges employers to provide and maintain a workplace that is safe and without risk to the health of its employees.

Ideally, the balancing of rights will result in the organisation’s reasonable accommodation for individuals who have a sincere religious objection to taking the vaccine – unless doing so, would pose an undue hardship on the organisation. This could include a requirement that the individual wears a mask at all times, keeps a social distance, has temperature checks, submits to regular Covid-testing, (in the context of the workplace, and where possible) is reassigned to another position or accommodated by remote working or shift changes, or other suitable measures.  Importantly, while the employee should ideally be consulted in what reasonable accommodation could look like, it remains the employer’s prerogative to decide what is reasonable in the given context – which may, of course, be challenged in a court of law.

Around the world, courts are starting to grapple with this issue as legal cases are being opened up against governments, universities, and employers to challenge their mandatory vaccination policies on various grounds, including raising “religious objections” to taking the vaccine. To date, South African courts have not yet had the opportunity to consider such a case – and it is difficult to predict how a court would find if presented with such a case. Much will depend on the particular circumstances of the case, as applied against section 36 of the Constitution.

Vaccination policies in the workplace

The Consolidated Directions on Occupational Health and Safety Measures issued by the Department of Employment and Labour on 28 May 2021 (the “Consolidated Directions”) deals specifically with the issue of vaccination in the workplace as follows.

Clause 3(1)(a)(ii) of the Consolidated Directions states that an employer, as part of its risk assessment, must decide (and by implication, communicate to its employees) if it is going to make vaccination mandatory. If yes:

• In terms of the same clause, the employer needs to identify (and notify) the employees (who because of the risk of getting infected, given the nature of their job and/or co-morbidities etc.) who should be vaccinated;
• Clause 3(1)(b)(ii) requires the employer to then develop a vaccination plan.

In this regard, Annexure C of the Consolidated Directions, sets out the guidelines for employers who wish to make vaccination mandatory (“the Vaccination Guidelines”), as follows:

• Clause 4 of the Vaccination Guidelines states that the key principle of the guidelines, is that employers and employees should treat each other with mutual respect.
• Clause 4 of the Vaccination Guidelines specifically states that a premium is placed on public health imperatives, the constitutional rights of the employee (including therefore the right to freedom of religion), and the efficient operation of the employer’s business.
• Clause 5 of the Vaccination Guidelines states that employees who are to be vaccinated in accordance with the Covid-19 vaccination roll-out plan, should be provided with the following:
  • In terms of Clause 5(a), notification of:
    • The obligation to be vaccinated as and when a vaccine becomes available;
    • The right to refuse to be vaccinated on constitutional (including therefore religious) or medical grounds;
    • The opportunity for the employee, at the employer’s request, to consult a health and safety representative or a worker representative or trade union official;
  • In terms of Clause 5(b), if reasonably practicable, transport and from the allocated vaccination site;
  • In terms of Clause 5(c), if the employee suffers side-effects as a result of the vaccination, they should get paid time off to recover if they are no longer entitled to paid sick leave in terms of the BCEA.

In terms of Clause 5(2) of the Vaccination Guidelines, if an employee refuses to be vaccinated (on constitutional or medical grounds), the employer should:

• Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
• Refer for further medical evaluation, should there be a medical contraindication for vaccination;
• If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated. (The Vaccination Guidelines expressly state that reasonable accommodation means adjustments / modifications to the job / working environment that will allow the unvaccinated employee to remain employed.)

Although the Consolidated Directions do not specifically say so, employers would be well-advised to expressly, and as part of their vaccination plan or policy, include:

• an exemption procedure, stating how employees who refuse to be vaccinated on constitutional or medical grounds should go about raising their objection (ideally in writing, clearly articulating the religious basis for the objection); and
• the process that will follow when an employee raises a constitutional objection (including, for example, on religious grounds). This process should ideally include a consultation process with the employee, with a view to reasonably accommodating him/her in the workplace.

Conclusion 

While, from a legal technical point of view, it is possible to raise a “religious objection” to mandatory vaccination policies, time will tell how the Courts will view such an objection and how it will balance the right to religious freedom against competing rights and responsibilities.

What is clear, however, is that a general or superficial objection dressed up in religious garb, will likely not pass muster – more will be needed in order to convince a court regarding the sincerity of one’s religious objection, why it needs to be specially accommodated, and/or why it is reasonable to reject the organisation’s offer of alternative arrangements. It is quite foreseeable that litigation in this regard could arise in the context of universities and (independent) schools, as well as the workplace.

Across the border in Zimbabwe recently, the government announced that only fully vaccinated persons could attend religious gatherings. Following consultations with religious leaders, however, the government reversed this decision and opened up religious gatherings to both vaccinated and unvaccinated persons.

Other than the president’s general statement (as part of his address to the nation on Sunday evening that Government will be consulting on making vaccination mandatory for “specific activities and locations”, there have not been any specific indications from the South African Government that a similar restriction could be considered for religious gatherings in our country. (Business for South Africa (B4SA), with the support of a group of 22 scientists and experts, are reported however to have said that “certain public spaces should be subject to vaccine mandates or only be open to people who are vaccinated”, including specifically “places of worship”.) Should this become a reality in any shape or form, FOR SA will certainly consider challenging what we would consider a huge imposition on the institutional autonomy of religious organisations. 

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