Organised business is to go to court to seek legal certainty on companies’ right to require their staff to be vaccinated against Covid-19, as part of an effort to speed up SA’s vaccine rollout and ensure workplace safety.
The move by Business Unity SA (Busa), which plans to apply to the high court for a declaratory order on workplace vaccine mandates, comes as a growing number of companies look to implement such policies. It comes, too, in a context in which demand for jabs has declined to a level where SA is now unlikely to achieve its target of vaccinating 70% of adults by December and is at risk of not reaching even 50% by year end.
Employers are permitted to make Covid-19 vaccinations compulsory for their employees in terms of occupational health and safety regulations that were issued by the department of employment & labour in June. The regulations allow employers to go this route for operational reasons — with the proviso that if employees refuse for good reason to be vaccinated, the employer tries to place them where they cannot endanger others before it moves to retrench them — as it is entitled to do if all else fails.
But with some trade unionists and student groups protesting that it would be unconstitutional to compel people to get jabbed, Busa wants a declarator from the courts that would provide certainty and give employers confidence “that they are on the right side of the law”, Busa CEO Cas Coovadia told Business Day.
“This is in the context of the imperative to significantly increase demand for vaccinations and the imperative to vaccinate as many people as possible as quickly as possible before the end of the year.
“We are saying: let’s get absolute legal certainty that will give employers a tool if they want to go that route legally and they can then have the usual discussions with labour in implementing it,” said Coovadia.
Busa also supports moves to require people attending sports matches and other gatherings to show proof of vaccination, as was done earlier this month for the Bafana-Ethiopia match.
“We are looking at as many tools as possible to get as many people vaccinated as possible,” Coovadia said.
Discovery was the first company to announce last month that all its employees would have to be vaccinated by January 1. Hospital groups Mediclinic and Life Healthcare have followed, and the University of Cape Town has announced students and staff would have to be fully vaccinated to access its campuses.
Business for SA’s Ron Whelan, who is chief commercial officer at Discovery Health, said there is interest in vaccine mandates across the market, and increasingly from small and medium enterprises (SMEs) in the Discovery ecosystem.
Pressure
“A lot of SMEs are feeling the pressure from their larger business partners who are saying, ‘we need your employees to be safe before we can give them access to our buildings’," he said.
Companies are starting to find that those who have been vaccinated are refusing to work with those who have refused to be, creating “a tricky labour law problem”, said Whelan.
One labour lawyer said: “Employers are faced with competing claims. The vaccinated are refusing to work with the unvaccinated because of the health risk (a legally justifiable course of action) and the unvaccinated are threatening to take them to court for a violation of constitutional rights.”
A growing number of countries, including France, Italy and the US, have implemented mass-scale workplace vaccination mandates or vaccine “passports” to access restaurants, concerts or sports matches.
Whelan said the experience has been that voluntary vaccinations get countries only to a particular point. Beyond that, many need additional levers, such as mandates or vaccine passports.
At its current cadence, SA would get 51% of the adult population vaccinated by mid-December, but it risks falling short even of this level if the daily vaccination rate decreases, Whelan said.
SA is now administering an average of 160,000 vaccinations a day, which is up from 120,000 at the end of September, mainly driven by second doses for 18- to 35-year-olds. But this is less of what is required to get to 70%.
Busa has emailed all its members to get a sense of how many intend to make vaccinations mandatory.
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