Jan Truter from Labourwise wrote:

CODE OF GOOD PRACTICE: Managing Covid-19 in the workplace (after the State of Disaster)

Although the State of Disaster can be expected to be lifted soon, Covid-19 is likely to linger for a while. So, what does the future hold with regard to the wearing of masks, social distancing, vaccination and other protective measures in the workplace? The Minister of Employment and Labour has published a Code of Good Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 (“the Code”) in terms of the Labour Relations Act. The Code will replace the regulations issued in terms of the Disaster Management Act, i.e., the Consolidated Direction of 11 June 2021 (“the Direction”). The Code will come into effect as soon as the National State of Disaster lapses (possibly 15 April 2022).

Key points of the Code

The Code generally mirrors the provisions in terms of the Direction. However, it contains some new aspects, as well a change of emphasis in respect of some of the existing obligations.

This is a summary of key points from the Code (novel aspects that are noteworthy have been highlighted in bold italic):
  1. Employers must undertake a risk assessment to give effect to its obligations in terms of the Occupational Health and Safety Act of 1993 as well as the Regulations for Hazardous Biological Agents of 2022 (Covid-19 has recently been listed as a “hazardous biological agent”).
  2. Employers must develop a plan or amend its existing plan to limit infection and transmission and to mitigate the risks of serious illness or death on the basis of that risk assessment.
  3. The risk assessment and plan must include – 3.1 the identification of employees who need to be vaccinated; 3.2 reporting of symptoms and isolation of employees; 3.3 protective measures, such as the wearing of masks and ventilation; 3.4 a procedure to resolve disputes if employees refuse to work because of safety concerns; 3.5 the process by which these obligations will be complied with.
  4. The Code mentions certain measures that may be included in the risk assessment and plan, e.g., social distancing, minimising the number of employees (e.g., through rotation, staggered working hours, shift and remote working arrangements); wearing of masks; sanitising; special measures for vulnerable employees, etc. (These are not obligatory in all circumstances, but may be necessary in some cases.)
  5. Employees must be notified of the contents of the Code, the plan and how it will be implemented.
  6. Employees must be provided with information relating to the virus, its transmission, the obligations of employees, etc. (similar to what is contained in the Direction).
  7. Employers must determine the vaccination status of their employees.
  8. Employers must require employees to immediately report symptoms, in which case employees may be required to be tested before being permitted to return to work.
  9. Employees who have been diagnosed with Covid-19 must isolate themselves for the period as recommended by the NDOH (The recommended period of isolation may change).
  10. With Covid-19 having been listed as a “hazardous biological agent”, employers have to adhere to certain requirements regarding ventilation.
  11. Employers are required to regularly check the websites of the NDOH, NICD and NIOH whether any specialised personal protective equipment is required or recommended based on the nature of the workplace or the nature of a worker’s duties and the associated level of risk.
  12. On the issue of vaccination, the Code’s provisions are similar to that of the Direction, except for the following differences:
    • Employees may be required to disclose their vaccination status and to produce vaccination certificates.
    • An employee who has a valid objection to vaccination on medical grounds, must be accommodated in a position that does not require the employee to be vaccinated.
    • The Code makes no reference to the right of employees to object to vaccination on constitutional grounds.
    • If an employee refuses to be vaccinated (on grounds other than medical grounds), 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,
    • The Code specifically mentions that employees are obliged to comply with the employer’s plan as it pertains to vaccination (intervals between vaccinations and dates by which employees must be fully vaccinated), and other protective measures.
A brief comment on vaccination mandates

There is now a clear legislative basis for employers to require employees who perform certain jobs to be vaccinated. If an employee refuses to be vaccinated on valid medical grounds, the employer must accommodate the employee in a position that does not require the employee to be vaccinated. (Presumably there are situations where this is not possible and where it would nevertheless be fair to terminate of employment on the basis of incapacity or operational requirements, depending on the particular circumstances). Employees who refuse to be vaccinated on other grounds (e.g., personal, political or religious beliefs) should be “reasonably accommodated”. This includes modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment. In this regard the Code incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act. One can, however, imagine situations where employment may be terminated on the basis of incapacity or operational requirements. The fact that employees are obliged to comply with the employer’s plan, including dates by which employees must be fully vaccinated, suggests that employees who fail to comply may be disciplined and even dismissed for misconduct in exceptional situations. While employers who wish to make vaccination mandatory for some or all of their employees, may be emboldened by the Code as well as the outcome of recent CCMA and Labour Court awards in favour of employers who have dismissed employees who refused to be vaccinated, caution is advised. Although there may be various grounds for the dismissal of employees who are not vaccinated, special care should be taken that they are treated fairly (in terms of both substance and procedure). Relevant factors to take into account include an employee’s reasons for refusing to be vaccinated, the nature of the job, risk of the spread of the disease, risk of serious illness and possible alternative measures short of dismissal (i.e., “reasonable accommodation”). Circumstances may differ vastly from one case to the next. Dismissal should be a measure of last resort.

Small employers

The provisions that apply to small employers (with 20 or fewer employees) are broadly similar to those applicable to larger employers, but are less stringent e.g., with regard to the formality of the requirements surrounding the risk assessment and plan, providing employees with information in relation to the virus, personal protective equipment and ventilation. However, it is notable that small employers who require employees to be vaccinated have the same obligations as larger employers when it to comes to dealing with employees who refuse to be vaccinated.

Refusal to work

Employees may refuse to work if they have reasonable justification to believe that there is an imminent or serious threat to be infected by Covid-19. If internal attempts to resolve issues surrounding a refusal to work fail, the employer has to notify an inspector of the Department of Employment and Labour to intervene. The Code contains measures that protect employees in these circumstances.

What should employers do?

Although the Code has not yet come into effect, employers are encouraged to do the following without delay: – conduct a risk assessment or update their existing risk assessment; and – develop a plan or amend its existing plan. As we have witnessed in South Africa and across the world, the prevalence of Covid-19 and its variants, the rate of infection and the severity of symptoms, are continuously changing. The appropriate response to the virus in the workplace could therefore change rapidly. Any plan or policy should be flexible in order to anticipate and accommodate such changes.