Is compensation available to Employees if they suffer an injury, illness or death as a result of a SAHPRA-approved Covid-19 Vaccine?
The Covid-19 Vaccination Injury No-Fault Compensation Scheme was established by the Disaster Management Act Regulations and continues to apply. Directions were gazetted on 4 April 2022. These relate to the administration and operation of the scheme, including the lodging of claims for compensation and the quantification of such claims. It was established to provide expeditious and easy access to compensation for persons who suffer harm, loss or damage as a result of a vaccine injury.
Persons eligible to claim compensation in terms of the Scheme are those who have suffered a serious vaccine injury resulting from the administration of an applicable vaccine at an official vaccination site, or their dependents who have suffered harm, loss or damage caused by the death of the deceased person. Vaccine injuries that are covered by the scheme are ‘serious injuries resulting in permanent physical or mental impairment, temporary physical or mental impairment, or death’.
In terms of the process to lodge a claim for compensation, if an individual presents with ‘any untoward medical occurrence’ (AEFI) after vaccination, such AEFI must be reported to the National Immunisation Safety Expert Committee (NISEC) within 30 days for investigation.
A person who has submitted a claim for compensation under COIDA for a vaccine injury shall not be eligible for compensation in terms of the scheme. Any person who elects to submit a claim to the scheme waives and abandons their right to institute legal proceedings in a court against any party for a claim arising from harm, loss or damage allegedly caused by a vaccine injury.
An eligible person will be informed in writing of the outcome of a NISEC causality assessment, which will include a recommendation on whether the claimant’s vaccine injury meets the requirements of causation. Thereafter a claim for compensation must be lodged within 30 days. The scheme administrator will assist the claimant with the lodging of a claim. The scheme does not require fault to be proven but requires causation. It is intended that processing a claim will be more cost-effective and expeditious than following civil proceedings. For this reason, the scheme may be the more attractive option for a claimant.
Claims under the Compensation for Occupational Injuries and Diseases Act (COIDA)
On 22 October 2021, the Compensation Commissioner published a general notice in the Government Gazette dealing with the compensation for COVID-19 vaccination side effects. The notice states that the Compensation Fund will cover employees for injuries, illness or death after receiving a COVID-19 vaccine. However, there are terms and conditions that employees and employees must be aware of.
- The employer must have required the employee to receive the vaccination.
- The vaccination must be regarded as an inherent requirement of the job as determined by the employer’s risk assessment.
- The employee must have been vaccinated with a SAHPRA- approved COVID-19 vaccine.
- Evidence must be provided of the employer’s risk assessment and vaccination plan where appropriate.
- The chronological sequence between the vaccine inoculation and the development of symptoms and clinical signs must be provided.
- The employee must have presented with symptoms and clinical signs that are generally recognised as side effects of Covid-19 vaccine.
- Additional tests may be required to assess the presence of abnormalities of any organ affected.
All claims will be adjudicated, and compensation will be determined and paid in terms of the Act of the Guidelines of Compensation Fund. If compensation is payable in terms of COIDA, the employee has no claim for civil damages against the employer. In order to submit a claim for compensation in terms of COIDA, establishing fault on the side of the employer is not required. Fault only becomes relevant if the employer was negligent, which may entitle an employee to claim further compensation.
When a claimant does not meet the requirements for a claim for compensation in terms of COIDA or they elect not to claim from the Scheme discussed above, they may still have a delictual claim against their employer for civil damages including for suffering, pain and loss of amenities. However, to be successful all of the elements of a delict need to be proven, namely conduct, causation, fault, wrongfulness and loss or harm. Practically it would be very difficult to establish at least some of these requirements.
It is unlikely that a vaccination policy and the implementation thereof, which is compliant in all respects, would be found to be wrongful, specifically considered in the context of the employer’s established obligations in terms of the Occupational Health and Safety Act, (OHSA) and the Hazardous Biological Agents Regulations.
By Ulrich Stander
©Maserumule Corporate Employment Law
This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication.