The government has published a new code of practice which is set to replace the existing Covid workplace rules in South Africa when the state of disaster is expected to lift on 15 April 2022.

Werksmans Attorneys has unpacked the new code and explained what it means for businesses, employees and thorny issues such as mandatory vaccinations

Existing regulations 

During the height of the pandemic, the Department of Employment and Labour released a Consolidated Direction on Occupational Health and Safety measures in certain workplaces which was published on 11 June 2021.

“Earlier versions of the directions put in place the now tedium-inducing requirements of mask-wearing, social distancing, provision of other personal protective equipment, sanitisation of workplace surfaces, hand-washing and the various other workplace measures which have, in no small part, assisted in achieving the reduction of the spread of Covid generally,” Werksmans said.

“The last version of the direction, which was released in June 2021, introduced the possibility of employers putting in place mandatory vaccination policies for the workplace.”

In short, the directions allowed  – and will continue to do so until at least 15 April 2022 – an employer to undertake a risk assessment to determine whether it will make the vaccination of employees mandatory, the firm said.

“These risk assessments must assess whether it is necessary to make vaccination mandatory in the workplace, based on the operational requirements of the employer.  The employer may therefore decide, after its risk assessment and considering its operational requirements and working environment, that it will not make vaccination mandatory.”

New code of good practice 

After 15 April 2022, the directions are expected to lapse along with the state of disaster and will cease to have any legal effect.

As much as this is to be welcomed, Covid will not disappear from the lives of employers and employees, and the concerns around what steps an employer must take to ensure that it provides healthy and safe working conditions remain relevant.

As such, the Department of Labour and Employment, after consultations with Nedlac have issued a Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace under the Labour Relations Act.

This essentially copies and pastes the content of the earlier directions, and makes the rights, measures and obligations required of employers and employees obligations under the Labour Relations Act, Werksmans said.

Major elements of the Code of Good Practice include:

• It recognises that the Regulations for Hazardous Biological Agents under the Occupational Health and Safety Act (OHSA), list coronavirus as a listed hazardous biological agent, classed as Group 3. It, therefore, places legal responsibilities on employers in respect of employers to limit the exposure and mitigate the risks of infection by SARS-CoV-2;

• All employers are recognised to have direct and positive obligations under the OHSA to take steps to an employer to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to limit or mitigate the hazard or potential hazard. Employers must also ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety;

• Employers who employ less than 20 persons only have to take limited steps (they must undertake a risk assessment and take reasonably practical measures to mitigate the risk of infection or transmission, and if an employee has Covid-19 symptoms to refuse to allow the employee to access the workplace and isolate the employee and to provide closed spaces with reasonable ventilation);

• Employers must conduct a risk assessment to determine their obligations under OHSA and the HBA Regulations.  The risk assessment must lead to a new or an amended plan to deal with safety measures, which can also include the mandatory vaccination of employees.  This is critical to note, as the Code of Good Practice now specifically makes it an entitlement under the LRA for employers to adopt mandatory vaccination policies;

• The protective measures adopted by an employer must be applied in respect of all workers. This includes employees, contractors, self-employed persons or volunteers.

Mandatory vaccinations 

The Code of Good Practice specifically and expressly provides for mandatory vaccinations in the workplace.

This is important as many employees and workplaces which have not yet adopted mandatory vaccination policies, on the basis that these may have become defunct when the state of disaster is lifted, are likely to do so now, said Werksmans.

In terms of mandatory vaccination policies, the Code of Good Practice replicates the requirements of the directions in that if there is mandatory vaccination for any category of employees, the employer must:

• Notify the employee of the need to be vaccinated once the vaccine becomes available for that employee (note that the Code of Good Practice still does not require the employer to obtain or pay for the vaccine, but it would reasonable be required for the employer to assist the employee to register for either private or public vaccination);

• Counsel the employee on these issues and allow the employee to consult a health and safety representative a worker representative, or a trade union official;

• Give administrative support to register for and access vaccination certificate portals;

• Provide paid time off for vaccination and provide transport to and from vaccinations sites.

“Whereas the directions allowed employees the right to refuse to be vaccinated on the basis of constitutional or medical grounds, the Code of Good Practice refers generally to an employee’s refusal to be vaccinated, but only requires the employer to make reasonable accommodation for such refusal where the employee produces a medical certificate attesting to the employee having contra-indications for vaccination – and the employer accepts such medical assessment, or has such assessment confirmed at its own expense.

As such, it appears that the Code of Good Practice would be less generous to employees if they appeal to a non-medical objection to vaccination, Werksmans said.

The Code of Good Practice also states that employers may now require workers to disclose their vaccination status and to produce vaccination certificates.

“Naturally, any processing of this information must be done in accordance with the relevant Protection of Personal Information Act, 4 of 2013 (POPIA) requirements, and any POPI policies and procedures adopted by the employer,” Werksmans said.

Typical measures continue 

Under the Code of Good Practice, mandatory vaccination policies will also live side by side with the usual measures such as:

• Social distancing measures including minimising the number of workers in the workplace through rotation, staggered working hours, shift and remote working arrangements;
• PPE measures
• Personal hygiene measures such as the wearing of face cloth masks, barriers, hand washing, sanitisers and surface disinfectants; and
• Any special measures to mitigate the risk of infection or serious illness or death in respect of individual employees at increased risk such as reducing the numbers in and the duration of occupancy in meeting rooms.

“A further emphasis which appears from the Code of Good Practice is that every worker is obliged to comply with the employer’s workplace plan  – which can include mandatory vaccination – in addition to the obligations of employees under the OHSA and the HBA regulations,” Werksmans said.

“As such, there appears to be a stricter requirement on employees to take reasonable steps to adhere to mandatory vaccination plans, and an acceptance that such plans are reasonable measures which may be adopted under the OHSA and HBA Regulations to ensure that employers do not breach their obligations to ensure that workplaces are free of health and safety risks.”

Commentary by Bradley Workman-Davies and Kerry Fredericks of Werksmans Attorneys
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