SOUTH AFRICA: NEW CODE OF GOOD PRACTICE TO REPLACE THE CONSOLIDATED DIRECTION ON OCCUPATIONAL HEALTH AND SAFETY MEASURES IN CERTAIN WORKPLACES
With the end of the National State of Disaster on the horizon, the South African Government has had to consider the legal framework that will apply once the regulations issued in terms of the Disaster Management Act, 2002 (and the various directions issued pursuant to those regulations) cease to have legal effect.
One such direction that has, since the start of the pandemic, been an employer’s handbook on the measures that must be taken to prevent and mitigate the risks associated with COVID-19 in the workplace, is the Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction).
Amongst other things, the OHS Direction, read with the Occupational Health and Safety Act, 1993 (OHSA), has also provided the basis for many employers to introduce vaccination policies in their workplaces.
To ensure that guidelines for managing exposure to COVID-19 still exist for employers, once the National State of Disaster ends, a new Code of Good Practice has been published by the Minister of Employment and Labour (Minister) in terms of section 203(2A) of the Labour Relations Act, 1995 (LRA). On 15 March 2022, the Minister published the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 (Code) which will take effect on the date that the Declaration of a National State of Disaster lapses.
Whilst not constituting binding law, the Code must be taken into account when applying or interpreting any employment law. For example, in determining whether an employer has complied with its obligation in terms of section 8 of the OHSA (to provide and maintain a safe working environment), inspectors and judges will take into account whether the employer has complied with the provisions contained in the Code.
In particular, the Code will need to be read alongside the Regulations for Hazardous Biological Agents, issued in terms of the OHSA (HBA Regulations). We understand that amendments to the HBA Regulations will be published soon, which will list SARS-CoV-2 as a Group 3 hazardous biological agent, thereby placing legal responsibility on employers to limit the exposure and mitigate the risks of infection of COVID-19 in the workplace.
The Code largely mirrors the provisions currently contained in the OHS Direction. However, it does contain some important differences. We highlight the most notable changes and additions below.
Risk assessments and plans for protective measures
The requirement to conduct a risk assessment remains an important one for employers, in order to comply with their obligations under the OHSA and the HBA Regulations. The aim of the risk assessment is to assess the risk of exposure to the COVID-19 virus and develop or amend an existing plan that deals with (i) any measures to be implemented in respect of the vaccination of employees; and (ii) any other protective measures.
One key difference, when compared with the wording of the OHS Direction, is that there is no longer reference to specific categories of employees who may be required to be vaccinated. The OHS Direction currently requires employers to identify those employees who by virtue of (i) the risk of transmission through their work; or (ii) their risk of developing severe COVID-19 disease or dying due to their age or comorbidities, must be vaccinated.
In contrast, the Code refers generally to the ‘vaccination of employees’, which may make it easier for employers to justify the general application of a vaccination requirement for all employees.
Protective measures to continue, where appropriate
The Code now makes a distinction between measures that are obligatory and those that are optional. This is evident by what must be covered by the risk assessment and plan. In terms of section 6 of the Code, the risk assessment and plan must include:
- the identification of the employees who are required to be vaccinated;
- the reporting of symptoms by employees and isolation of employees who are diagnosed with COVID-19 and are symptomatic;
- the workplace protective measures required to be taken in terms of the HBA Regulations, including personal protective equipment and ventilation;
- a procedure to resolve any issue that may arise from an employee’s exercise of the right to refuse to work in the circumstances contemplated in section 15(1) (which mirrors Direction 14 of the OHS Direction); and
- the process by which the obligations under the Code will be complied with.
The risk assessment and plan may include:
- social distancing measures including minimising the number of workers in the workplace through rotation, staggered working hours, shift and remote working arrangements;
- PPE measures (in this regard, section 11 of the Code requires employers to check the websites of the National Department of Health, National Institute for Communicable Diseases and National Institute for Occupational Health regularly to see whether any specialised PPE for COVID-19 is required or recommended, based on the nature of the workplace or the nature of the worker’s duties and the associated level of risk);
- personal hygiene measures such as cloth masks, barriers, hand washing, sanitisers and surface disinfectants; and
- any special measures to mitigate the risk of infection or serious disease or death in respect of individual employees at increased risk, such as reducing the numbers and the duration of occupancy in meeting rooms.
What this appears to imply is that measures such as social distancing, the provision of sanitisers and wearing of masks will no longer be strictly required, unless the employer deems these measures to be necessary to comply with its obligations under the HBA Regulations.
The Code does, however, require an employer who departs from any non-obligatory provisions of the Code to demonstrate justifiable reasons for doing so. Employers should, therefore, carefully consider their obligations, with reference to their risk assessments, before doing away with these measures in their workplaces.
Symptom reporting and isolation
Employers must still require their workers to inform them immediately if they experience any of the symptoms associated with COVID-19.
However, there is no longer a positive obligation on employers to screen workers when they report for work. The contact tracing and quarantining provisions that are currently in the OHS Direction have also been removed and do not appear in the Code.
In terms of the Code, when employees inform their employers that they are experiencing COVID-19-related symptoms:
- the employers may require the employees to be tested for COVID-19 before permitting the employees to enter the workplace or report for work (this does not apply to workers who report the presence of symptoms between one and three days after vaccination); and
- if the workers are diagnosed with COVID-19 and are symptomatic, the workers must inform the employers, and isolate for the period as recommended by the National Department of Health (currently seven days), unless a longer period is recommended by a medical practitioner.
Vaccination of employees
The provisions currently contained in the OHS Direction regarding vaccination are largely reproduced in section 12 of the Code. However, there are some key distinctions:
- The Code now expressly permits an employer to require its employees to disclose their vaccination status and to produce vaccination certificates and, in fact, obliges every employer to take measures to determine the vaccination status of their workers. This will come as a welcome clarification for employers who have, to date, grappled with the question of whether the processing of vaccination status is permissible in terms of the Protection of Personal Information Act, 2013.
- Where an employee produces a medical certificate attesting that the employee has contra-indications for vaccination (as a basis for the employee’s refusal to vaccine), the employer is permitted to refer the employee for a medical evaluation to confirm this, at the employer’s cost.
- The Code does not specifically refer to employees’ rights to refuse vaccination on ‘constitutional and medical grounds’ but refers generally to the concept of reasonable accommodation if an employee ‘refuses to be vaccinated’ (i.e. for any reason). In this regard, however, it appears that there will be a greater obligation on employers to reasonably accommodate an employee where the basis for refusal is a medical contra-indication.
As is currently the case under the OHS Direction, small employers have limited obligations under the Code. In particular, employers with 20 employees or less must conduct a risk assessment and comply with the more limited obligations contained in section 13 of the Code (which includes the requirement to comply with section 12 where a mandatory vaccination requirement is implemented).
In addition, the Code does not apply at all to workplaces that are excluded from the application of the OHSA (such as mines and ships). However, in terms of section 18 of the Code, if an employer that is a mine requires its employees to be vaccinated, then the provisions dealing with an employee’s refusal to be vaccinated (including the obligation to reasonably accommodate), as set out in section 12, will apply.