The national state of disaster which was declared on 15 March 2020 is currently set to expire on 15 April 2022. The national state of disaster with its various “alert levels” which South Africans have grown accustomed to over the last two years, have had a significant impact on businesses and the way employers were required to staff and manage their workplaces.
While many industries are waiting with bated breath for the end of the national state of disaster, employers nationwide need to take note of the provisions of the Code of Practice: Managing Exposure to the SARS-COV-2 In the Workplace 2022 (“the Code of Practice”), which was issued on 15 March 2022 by the Minister of Labour and Employment and which will come into force and effect upon the expiry of the national state of disaster. The purpose of the Code of Practice is to guide employers and employees in managing exposure to SARS-CoV-2 (“Covid-19”) in the workplace.
The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) (“OHSA”), read with its regulations and incorporated standards, requires employers to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the safety and health of workers and to take such steps as may be reasonably practicable to limit or mitigate hazards or potential hazards to which employees may be exposed.
OHSA further requires employers, to 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. This obligation also applies to self-employed persons (for example, plumbers or electricians) whose working activities bring them into contact with members of the public.
The Code of Practice applies to any premises of an employer where a person performs work (excluding mines, mining areas or works). The identifiable hazard relating to COVID-19 is the risk of the virus infecting a worker, the virus transmission by an infected person to other workers in the workplace and the risk of serious illness or death if infected. In the workplace to which the public has access, the hazard includes transmission of the virus by members of the public. Each situation requires special measures to be implemented by employer in order to prevent infection and transmission of the virus or mitigate the risk of serious illness or death.
RISK ASSESSMENT AND PLAN
The Code of Practice requires employers to undertake a risk assessment to give effect to its obligations under OHSA and to develop or amend its existing Covid-19 management plan to include any measures to be implemented in respect of the vaccination of its employees. Employers are required to notify workers on its premises of the contents of the Code of Practice and its Covid-19 management plan and the manner in which the employer intends to implement it. Section 15 of the Code of Practice provides that every worker is obliged to comply with the employer’s Covid-19 management plan.
VACCINATION OF EMPLOYEES
The Code of Practice may facilitate employers in implementing a vaccination policy in that employers are able to incorporate the vaccination of its workforce as part of its Covid-19 management plan. Employees are in turn obliged to comply with the Covid-19 management plan.
The Code of Practice obliges every employer to, amongst others, notify the employees identified its Covid-19 management plan of the obligation to be vaccinated and counsel the employee on the issues related to vaccines.
In giving effect to the Code of Practice, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate.
If an employee refuses to be vaccinated, the employer must counsel the employee and take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
Whilst the lapsing of the national state of disaster with its associated “alert levels” may be imminent, the impact of Covid-19 in the workplace will be continued to be felt by employers and employees alike, for the foreseeable future. Compliance with the Code of Practice is thus instructive.