A Code of Good Practice is not a law, merely a guideline to be taken into account when interpreting an actual law. It cannot create new rights or obligations for employers or employees. With the end of the State of Disaster, this letter can be used to inform an employer that mandatory vaccination schemes no longer have a basis in law.
END OF MANDATORY VACCINATION POLICY
The state of disaster declared by the Minister of Cooperative Governance and Traditional Affairs (the “COGTA Minister”) on 15 March 2020 was terminated by the COGTA Minister effective midnight on 4 April 2022.
The company implemented a mandatory vaccination policy in terms of a direction (the “Direction”) made by the Minister of Employment and Labour (“Minister”) on 28 May 2021 under Regulation 4(10) of the Regulations passed by the COGTA Minister under Section 27(2) of the Disaster Management Act (the “DMA”). With the termination of the state of disaster, the Direction ceased to be of force and effect. The Direction can therefore no longer be relied upon by the company as a justification for the imposition of a vaccination policy.
On 15 February 2022, the Minister published a document titled “Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, 2022,” (the “Code”). The Minister has the power to pass such Codes, only where Nedlac is not agreeable to a proposal, in terms of Section 203(2A) of the Labour Relations Act (the “LRA”). The Code purportedly takes effect on the date of the lapsing of the declaration of the state of disaster.
A Code of Good Practice is not a law, but merely a guideline to be taken into account when interpreting an actual law. A Code of Good Practice cannot create new rights or obligations either for employers or employees. As stated in the Code, its purpose is merely to “guide employers and employees,” and to set out the “interpretation of the law” supported by the Minister and his Department. As such, the company cannot rely on the Code as a law that provides for the imposition of mandatory vaccination. The Code merely sets out the Minister’s views on the correct interpretation the referenced labour statutes.
In the Code, the Minister appears to suggest that the labour statutes can be interpreted as allowing employers to impose a mandatory vaccination policy. There is no obligation on the employer to impose such a policy and failing to implement a policy would not result in a breach by the company of any law. The Minister’s interpretation of the labour law is plainly very aggressive, inconsistent with the opinion the Minister evidently held in May 2021 when he passed the Direction. If the Minister genuinely believed that mandatory vaccination was authorised without any specific law, he would never have passed the Direction.
It seems clear that the Minister has adopted the Code simply to maintain mandatory vaccination policies without Parliamentary oversight or public comment. The Minister knows this is deeply unpopular and will not pass Constitutional scrutiny. Multiple legal scholars have noted that mandatory vaccination is inconsistent with Constitutional rights that can only be limited by a law of general application that did not exist prior to the Direction and which limitation must be reasonable and justifiable in an open and democratic society.
In light of the above, with effect from midnight on 4 April 2022, the law reverted to the pre-state of disaster situation in which mandatory vaccination was universally confirmed as incompatible with statute. The Minister’s interpretation set out in the Code is not binding on the company and I submit that it is plainly wrong. Should the company adopt this interpretation and continue to implement a mandatory vaccination policy, it is clear that this policy will be illegal and that the company will be exposed to liability.
I would therefore request that you either confirm, by close of business on [ ] that the company’s mandatory vaccination policy has been suspended or that you provide me with a legal opinion from a reputable firm of attorneys or senior counsel confirming that the policy is legal and explaining what law the company relies on in continuing to implement such a policy.
In closing, I would note that the Direction was made at a time when it was assumed that the Vaccines would prevent viral transmission in order to contribute to herd immunity. This is evident from the definition of “COVID-19 Vaccines” in the Direction. It has since transpired that the Vaccines do not contribute to herd immunity because they do not prevent or reduce infection or transmission. For this reason, the definition of Vaccine in the Code no longer refers to transmission or herd immunity. Without this effect, there is no logical basis to mandate vaccines. They simply do not make the workplace safer. As such, it may be that the company’s policy was implemented with the best intentions but that developments in science have proven that the policy is irrational. This is the conclusion that the University of Cape Town and many other companies have come to (including Medi-Clinic and Anglo American) in abandoning their mandatory vaccination policies.