Mandatory vaccinations – a turning tide?

Mandatory vaccinations – a turning tide?

It is not surprising that the Covid crisis is abating, but will the call for mandatory vaccinations follow? In South Africa, the enforcement mechanism for mandatory vaccinations did not come directly from an Act of Parliament, nor government decrees, but via employers. The message became clear: employees must be vaccinated or face the prospect of being fired. Some companies did, indeed, fire employees.

Another employment enforcement mechanism came in the form of companies inserting terms into service contracts stating that employees of contractors were required to be vaccinated to be granted access. In this case, many contractors told their employees that they had to be vaccinated or they would be fired because clients insisted on vaccination.

An odd feature of compulsion is that in many cases it does not decrease as the problem abates. In other words, even if Covid goes away, the measures may remain. The Covid regulations, for example, were promulgated in terms of the Disaster Management Act, which requires a State of Disaster to be declared before regulations can come into force. The regulations cease to have the force of law after the State of Disaster is lifted.

When it became clear that the State of Disaster was going to be lifted, a government minister announced that he was going to promulgate the same regulations in terms of another Act independent of the State of Disaster. In this case the minister could, at any moment, reintroduce all previously enforced regulations and more. The proposed regulations were far more draconian than pre-existing ones.

Therefore, the abatement of the problem does not necessarily mean the abatement of the practical measures – they may well outlive everything else. Two examples can illustrate the problem.

About 50 years ago, regulations were passed regulating the commissions to be paid on insurance premiums. There was no reason why these regulations needed to be passed and, if a valid reason existed, no one knew what that reason was. It has been lost in time. If there was a problem, it is now unknown.

Other countries do not regulate insurance premiums. Commissions are paid by multi-billion-rand insurance companies who do not need regulations to protect themselves. Some countries have regulated insurance premiums, but not commissions – which are one item of expense. Those countries that regulated insurance premiums did not do so to protect consumers from high premiums, but to protect them from low premiums. In the UK in the 1960s, several insurance companies failed in the same year because their premiums were too low. They were not adequate to cover the cost of running the insurance company. Insurance premiums are the source of income for insurance brokers. Over the years, massive regulatory costs have been added to the expenses of brokers.

South Africa has many financial markets. By statute, a policy board previously existed that was able to recommend measures to bring consistency across markets, and this board did some very good work. In 2008, for example, it recommended that commission regulations be abolished and drafted the notice of abolition for the Minister of Finance to sign. He duly signed this notice, but it was never promulgated. The fixed income earned by brokers prevents these costs from being recovered from insurance companies via the commission. As a result, the broker market did not develop as it should have.

Be that as it may, the bottom line is that regulations can exist without any obvious reason – their existence acquires a life of its own. So, the fact that a problem goes away is not a guarantee that the measures introduced to deal with it will follow suit.

An even more interesting example comes from the life of Otto von Bismarck, who once stayed in a Russian palace while he was a guest of the state. He looked out of a window and noticed a guard had been posted to stand in the middle of a garden. It did not make sense to him and, being a curious person, he asked his host about the purpose of the guard. The host indicated that he did not know, but would make some enquiries. The guard commander was summoned and asked why the guard had been posted to that position. The guard commander explained that the guard was there because it was an allocated guard position, but had no idea why that location had been assigned a guard. Now everyone was curious. Consequently, a diligent search of the records was carried out.

Fortunately, the Russians kept good records and eventually the reason was revealed … One day Catherine the Great had walked through the garden and noticed a beautiful flower there. She was worried someone would trample the flower underfoot and ordered that a guard be posted to ensure the security of the flower. The guard posting was never removed, even though Catherine the Great died about 20 years before Von Bismarck was born.

Thus, one of the problems society faces regarding enforcement measures is that these measures may remain after the problem has gone away. People may end up blindly adhering to these measures, without anyone actually knowing why – the measures take on a life of their own.

Many years ago, a South African company was successfully sued because its salesman had disparaged the products of competitors, claiming amongst other things that the products caused cancer. At the time the case was very famous, making headlines as it progressed through the courts. The company instituted a process whereby every month the salesmen would sign a statement that they were not going to disparage competitors’ products.

Eventually the company that had been sued was taken over by another company. When, 50 years later, members of the sales team were still signing and submitting the form, managers were asked why the form existed, but they did not know. The form was no doubt a good and costless risk control measure, but the reason for its existence had long been forgotten.

Clearly, there are many practical examples demonstrating that risk control measures can acquire a life of their own, especially if backed by the government.

In South Africa, after several Commission for Conciliation, Mediation and Arbitration (CCMA) cases ruled that the dismissal of employees for refusing to get vaccinated was acceptable, the CCMA has now taken a different tack. Some companies who dismissed employees are even considering rehiring them. In other countries, such as New Zealand, courts are also turning against compulsory vaccinations. It appears that the tide has indeed turned.

Published by

Albert Mushai

Legally Speaking is a regular column by Albert Mushai from the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining the University of the Witwatersrand as a lecturer in insurance. 
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