Can estate managers enforce vaccinations?

The issue of mandatory vaccinations basked in the spotlight during tennis ace Novak Djokovic’s recent Australian Open debacle.

Closer to home, the Commission for Conciliation, Mediation and Arbitration (CCMA) upheld the dismissal of an employee who refused to get vaccinated.

When it comes to estates, however, consensus is that mandatory shots cannot be enforced. Here’s why.

Never the twain shall meet

Today there is a whole different set of social taboos when compared to pre-pandemic times. Light conversations instantly go awry when friends of the same circle sit on different sides of the vax fence.

Whether chatting to members of homeowners’ bodies, estate managers or health care workers for the purpose of this report, it was telling that interviewees insisted on anonymity, or the use of a pseudonym*.

Get facts straight

The crux of the case in which Theresa Mulderij lost a CCMA appeal is that her employer, the Gold Rush Group, had adopted a vaccine mandate policy requiring vaccination. Not helping her cause is that Mulderij based her decision not to get vaccinated on ‘widely circulating but misleading, overstated, or outright false claims’ about the efficacy of Covid-19 vaccines.

In his blog Constitutionally Speaking, UCT Law professor Pierre de Vos says he takes two important lessons from the CCMA’s arbitration award. Firstly, employees owe a duty of care to safeguard their colleagues from Covid-19 harm.

‘Another lesson is perhaps that doing your own research, and embracing misleading or false claims about the safety of Covid-19 vaccines, can cost you your job,’ says De Vos.
Further contributing to the outcome is that doctors consulted by Mulderij were unwilling to support her claim for medical exemption. Confusingly it appears that the medical fraternity seems as divided over vaccines as the rest of their ostensibly less-knowledgeable fellow citizens.

On and off the record

When questioning Nadia Ferreira – Western Cape Health communications officer for the Garden Route and Central Karoo – on enforced shots, her answer reflects the province’s official stance.

‘To my knowledge, there has been no residential or retirement estates where a mandatory vaccination policy has been implemented,’ she says. But personnel at three retirement estates located within Ferreira’s district paints a different picture.

Working in a senior health care position at a Knysna retirement village has not softened the resolved of Anne*, who says she would rather die than get vaxxed, no matter the mounting pressure from management.

‘It has not been officially admitted, but staff here know they are risking their jobs when resisting the jab, and most of our residents have toed the line. When you’re older, you simply fall in line. Some of the younger staff went for their jabs because it meant a day off from work.

‘We are extremely cautious, observing all safety rules, avoiding groups, sanitising and the rest, but being fired is a reality for us few non-believers.’

Another Route-based registered nurse, who had spent days during the past holiday season running from public parking lots to billionaire’s mansions when urgent Covid tests were required, agrees that some of her co-workers who refused getting vaccinated are on the brink of losing their jobs.

None of the managers consulted admitted to such ‘unspoken’ policies, and legal practitioners concur that currently in SA mandatory vaccinations cannot be enforced.

The law dictates

In a report by Se-Anne Rall on iol.co.za, law expert Marina Constas says residents or visitors to estates cannot be expected to present proof of vaccination before using the facilities, even though it sounds reasonable for management to require staff and patrons to produce such proof.

‘It may seem sensible and even necessary to expect the same from residents and visitors to sectional title complexes, apartment blocks, residential estates and retirement villages. But, a vaccine mandate for residents or a blanket refusal to have non-vaccinated visitors in the building would be unreasonable.

‘However, ensuring that legally required safety measures like face masks, sanitising and limited numbers at gatherings are enforced, is not just reasonable but an obligation for trustees, bodies corporate and homeowners’ associations,’ Constas says.

Common property is owned by all members of the body corporate; each owner has an undivided share of the complex’s common property and cannot be prevented from using it. Importantly, no definitive decision has been made by SA’s High Court regarding vaccine mandates.

Her conclusion is that, without a relevant law or valid by-law, there is no legal basis for sectional title trustees or homeowners’ associations to mandate vaccination among residents or visitors.