When the Minister of Health, Dr MJ Phaahla repealed Regulations 16A, 16B, and 16C of the Regulations Relating to the Surveillance and the Control of Notifiable Conditions made in terms of the National Health Act, No. 61 of 2003 (Health Act Regulations) on 22 June 2022, this led to extensive, and sometimes, heated debate, particularly on social media, regarding whether or not it was a good thing that the remaining Covid-19 requirements, including the wearing of masks in public places, had been removed. The views, particularly on social media were diverse, with some commentators confirming that they would continue to wear masks, despite the repeal of the Health Act Regulations. Regardless of which debate persons supported, one message seemed clear from all sides – the repeal of the final restrictions advances freedom of choice. This comment, in itself, will probably lead to more debate, but debate is a good thing.
The debate inevitably turned to whether, despite the repeal of the Health Act Regulations, employers, businesses, retail stores, and events organisers could still require employees, clients, and attendees to wear masks, and even to be vaccinated, or require negative PCR testing in the absence of vaccination.
The repeal of the Health Act Regulations cannot be looked at in isolation. Occupational health and safety in both the mining and non-mining industries is regulated by two complex pieces of legislation, being the Occupational Health and Safety Act, No. 85 of 1993 (OHSA) for non-mines, and the Mine Health and Safety Act, No. 29 of 1996 (MHSA) for mines. Both these pieces of legislation, in their own way, require the relevant entities to provide and maintain a healthy and safe workplace, with specific sections of the OHSA and MHSA, and the various Regulations that are promulgated under these pieces of legislation, setting out how this is to be achieved, in detail.
Both the OHSA and MHSA have, as the fundamental point of departure, the requirement to conduct hazard identification and risk assessments (HIRAs), and based on these HIRAs, to implement appropriate measures, to address the identified hazards and the assessed risks. Logically, if the HIRA process is not vigorous and comprehensive, appropriate measures may not be implemented.
In the case of Covid-19, the question is whether Covid-19 is (or should be) an identified hazard. If so, the identified hazard of Covid-19 must be assessed for risks associated with, amongst others, contracting and spreading Covid-19 in the workplace, together with the consequences that may flow from this including impact on the business.
Once the HIRA process has been carried out, appropriate controls must be identified. Measures such as vaccination, social distancing, wearing of masks, and sanitization, are control measures for the identified risk of Covid-19. Importantly, control measures must themselves be assessed for efficiency, and whether or not there are consequences which may flow from the implementation of the control measures, which are not tolerable in the circumstances.
Control measures must also be proportionate to the identified hazard and the assessed risks. In the case of AngloGold Ashanti Limited and Others (4 November 2016 – unreported – Case No. J2459/16), the Court addressed the principle of proportionality, at paragraph 29 as follows “Proportionality, of course, is an element of the right to reasonable administrative action established by s 33(1) of the Constitution. Prof Hoexter, in Administrative Law in South Africa (2 ed, Juta & Co, 2012) describes the essential elements of proportionality as balance, necessity and suitability, the latter referring to the use of lawful and appropriate means to establish the administrator’s objective. In other words, it is the notion that one ought not to use a sledge – hammer to crack a nut (at page 344)“. While this judgement does not specifically address proportionality in the context of risk management or control measures, the judgement relates to so – called “stop instructions” issued by the Mine Health and Safety Inspectorate in terms of Section 54 of the MHSA for health and safety infringements, and is therefore relevant, more broadly, to health and safety.
The Guideline for the Mandatory Code of Practice on Mitigation and Management of Covid-19 Outbreaks issued by the Chief Inspector, Mine Health and Safety Inspectorate, Department of Mineral Resources and Energy, requires the risk assessments carried out by the mines, to be reviewed regularly and whenever circumstances arise or change at the mine that could have an impact on the original assessment and the risk of contracting Covid-19. This reconfirms the risk-based approach that must be adopted at mines, including in relation to Covid-19.
On 24 June 2022, the Minister of Employment and Labour, Mr TW Nxesi published a new / revised Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022. This Code of Practice essentially “transfers” the responsibility for managing Covid-19 in the workplace, to employers, following the repeal of the Health Act Regulations. The Code of Practice also reconfirms the risk-based approach, and Chapter 2 sets out the requirements for a risk assessment and plan to be carried out and adopted.
The repeal of the Health Act Regulations was based on an assessment of the current risk, by the Department of Health, as reflected in the memorandum published by Dr Phaahla on 20 June 2022, and it is going to be challenging for employers, businesses, event organisers and other institutions to ignore the content of Minister Phaahla’s memorandum and the assessment of the current risk, by the Department of Health.
It is clear that further debate is required and those companies and institutions that have implemented a vaccine mandate, based on historical assessment of risk, may face significant challenges from employees, trade unions and their customers in the coming weeks. What is clear, is that employers, businesses and other institutions must as a matter of urgency either carry out a new hazard identification and risk assessment, or review their previous risk assessments to ensure that appropriate measures are implemented in the workplaces and other venues.
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