Employers can still implement mandatory vaccination policies

The CMMA is not the ultimate decider of the constitutionality of mandatory vaccinations, says expert.

Bankey Sono, director at Werksmans Attorneys, says only the High Court can pronounce on the unconstitutionality of a policy, including one on mandatory vaccinations.

Bankey’s comment comes after the CCMA recently declared the dismissal of an employee who refused to be vaccinated for Covid-19 unconstitutional. The CCMA held that the dismissal of the employee was substantively unfair.

“Despite the nobility of the declaration by the CCMA, only the High Court can pronounce on the unconstitutionality of a policy and the said unconstitutionality has to be confirmed by the Constitutional Court. Constitutionality simply does not fall within the purview of the CCMA,” says Bankey.

She says the Code of Practice published by the employment and labour minister in June allows employers to continue developing and enforcing mandatory vaccination policies.

“This is subject to employers firstly conducting a risk assessment and concluding a plan in terms of which employees identified in the risk assessment must be vaccinated,” Bankey says.

According to Bankey, it is the outcome of the risk assessment that directs the employer’s decision whether or not to have a mandatory vaccination policy in place to ensure the safety of their workplace.

“While the [CCMA] award raises interesting and important questions surrounding the constitutionality of mandatory vaccination policies, in the face of the code, there is nothing in the law as it currently stands that prohibits employers from having and enforcing mandatory vaccination policies in respect of their individual workplaces,” says Bankey.