By Chileshe Mange CTPD Researcher -Legal
On the 14th April, 2021, the Government of the Republic of Zambia launched the first ever COVID -19 Vaccination Programme. This followed the procurement and arrival of the first 228,000 doses of COVID-19 vaccines under the COVAX Facility.
In accordance with the National Vaccine Deployment Plan, the vaccine will be available to all willing persons above the age of 18 years. The Ministry of Health announced that the first dose of vaccines will be administered to priority groups which include health workers and other frontline workers performing core societal functions such as the police, defense and security personnel, teachers, judiciary staff and traditional leaders. Vaccinations will be conducted at selected vaccination sites in each district as well as in some outreach posts.
The World Health Organization has cautioned that as with all medicines, no vaccine is completely effective. It is possible to contract COVID-19 despite having a vaccination, but this should lessen the severity of any infection. Furthermore, citizens will still need to wear the correct personal protection equipment, follow social distancing guidelines, and participate in any screening programmes.
The core benefit of the vaccine is therefore that it reduces severity of COVID-19 infection which in itself offers significant relief to strained health systems and the wider economy by reducing public health expenditure. The global economy shrunk by approximately five percent with variations from country to country. Health and economic experts are generally enthusiastic about the vaccine and view successful vaccination as an essential element for management of the pandemic and economic recovery.
The Zambian Government has adopted “a cautious, phased out approach on a pilot basis” which is understandable given the dearth of information about the efficacy of the vaccines and long-term side effects. Notwithstanding, a successful rollout of the Vaccination Programme, which is voluntary, is anchored on the information made available to the public in relation to their legal rights and avenues of recourse.
Some of the preemptive legal issues that arise are:
(i) How will the Government treat claims in relation to the harmful side effects to the vaccine?
Like all medicines, vaccines can cause side effects. Denmark has dropped the roll out of AstraZeneca due to “rare but serious side effects”, including blood clots and loss of speech or movement, giving rise to liability and potential law suits. Regulators such as the Food and Drug Administration and the European Medicines Agency are due to issue guidance on further roll out of Moderna and Johnson and Johnson COVID-19 vaccines.
The onus falls on the Zambian government to provide information as to any recourse available to members of the public who experience serious side effects to the COVID vaccine or advise whether all the risk will be transferred to persons who consent to taking the vaccine.
The United Kingdom for instance has given a legal indemnity to pharmaceuticals such as Pfizer, protecting it from being sued. The indemnity extends to both criminal and civil liability. Health care workers and institutions authorized or tasked with administering the vaccine also have immunity. This means that UK citizens who experience harmful side effects cannot sue the manufacturers which has raised questions as to who will ultimately take legal responsibility in the event of COVID-19 vaccination injury or even loss of life.
The Centre for Trade Policy and Development (CTPD) recommends that the Zambian Government issues a statement on its position in this regard to enable members of the public make an informed decision about whether or not to be vaccinated.
(ii) Workplace vaccination policies
As vaccination is voluntary, it is not possible to compel employees to be vaccinated against their will, in the absence of a regulatory or contractual requirement. Employers have a legal obligation to, so far as is reasonably practicable, implement measures as are necessary to ensure the health and safety of their employees at the workplace. A relevant question to ask is whether this includes ensuring that employees are not placed at risk by having to work alongside colleagues who have not been vaccinated.
Therefore, whether or not an employer can mandate employees to be vaccinated would likely hinge on whether such requirement is reasonable taking into account the nature of the job and level of risk or exposure to COVID-19 infection.
(iii) Protection from discrimination
service industry which has been one of the hardest hit by the COVID-19 pandemic is particularly vulnerable to this legal construct. Many establishments were shut down for fear of being “COVID-19 hotspots”. The question then begs, would owners of bars and restaurants and other establishments in hospitality be within their rights to require proof of COVID-19 vaccination as a prerequisite to patronize their establishments? The immediate answer would appear to be yes, as these are typically private establishments who reserve the right of admission, though it could be argued that such measures are discriminatory and therefore unconstitutional.
The Ministry of Health announced that the next vaccine doses under the COVAX Facility are expected to be delivered in May, 2021, with more consignments to follow thereafter. As the Vaccination Programme gains momentum, the need to strike a balance between legal obligations to create safe working or leisurely spaces and the infringement of personal rights will become more apparent.
It would therefore be prudent for the Government to issue guidelines pertaining specifically to the treatment of citizens who opt not to take the vaccine. The Government should advise the public as to whether it will adopt a zero tolerance policy on discrimination on the basis of whether or not one takes the COVID-19 vaccine, or whether matters will be assessed on a case by case basis as and when they arise.
