Business Unity SA (Busa) has shelved its planned application to the Constitutional Court for a directive on Covid-19 vaccine mandates in workplaces, citing the government’s planned health and workplace regulations, which will kick in when the state of disaster ends, as sufficient for the implementation of a mandate.
Legal advice that Busa has received suggests there is no need to approach SA’s apex court given that some companies have already implemented the practice, especially because lower courts have upheld the rights of the employer.
“We are satisfied that a vaccine mandate is in the public good. We think government’s planned health and workplace regulations will be sufficient in defence of the rights of the employer,” Busa CEO Cas Coovadia said in an interview with Business Day.
He added that Busa would “support” employers in any challenge to the practice launched by employees.
The labour court and the Commission for Conciliation, Mediation and Arbitration have upheld the decisions of several employers to either suspend or dismiss employees who refused to get vaccinated or to take weekly tests.
Busa’s plans to seek legal clarity on companies’ right to require their staff to be vaccinated came in October 2021, when demand for jabs was declining, raising worries about revenue-sapping lockdowns amid the uncertainty related to how the virus would mutate.
Compulsory
But employers have always been permitted to make Covid-19 vaccinations compulsory under the occupational health and safety regulations issued by the labour department four months before Busa announced its intention to seek legal clarity.
The business association’s decision to withdraw the application comes in the context of an economy that has largely reopened, except for bans on big live sports events and large concerts, as the increasing rates of vaccination and levels of immunity from prior infections have seen the pandemic stabilise and become less deadly.
Sweeping powers
In support of Busa’s approach, the government has committed to ending the state of disaster, which has given it sweeping powers for the past two years to impose regulations controlling the movement of people and the size of gatherings, mask wearing in public and curfews.
In preparation for this, the government is grappling with formulating alternative legislation that will give it the flexibility it needs to manage another outbreak.
Employment & labour minister Thulas Nxesi this week published new rules for managing Covid-19 in the workplace.
The rules, which will come into effect when the national state of disaster is lifted, include reaffirming employers’ rights to introduce vaccine mandates
and tightening the grounds on which employees may refuse to get jabbed.
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