The current state of disaster will lapse on 15 April 2022; and indications are that it will not be renewed. This is indicated by the fact that the Minister of Employment and Labour has issued a new Code of Practice to replace those provisions of the Disaster Management Act applicable to the workplace. This code of practice for managing exposure to Covid in the workplace will come into effect on 15 April 2022 and, in summary, provides that:
The Occupational Health and Safety Act (OHSA) requires the employer to take steps necessary to protect employees and other persons present at the workplace from occupational hazards. The Code states that COVID-19 is one such hazard that poses a risk of workers and others becoming seriously ill or dying.
“The employer’s primary obligation is to conduct a special risk assessment to determine the risk of exposure and the control measures to limit infection, transmission and mitigate the risk of serious illness or death on the part of employees and other persons who may be directly affected by the activities of the workplace.”
The Code provides a guide to employers and employees in implementing the requirements for:
- conducting or updating a risk assessment in respect of SARS-CoV-2 exposure;
- developing and implementing a plan to limit infection, transmission and mitigate the risks of serious illness or death on the basis of that risk assessment;
- managing absence from work due to infection, isolation and adverse effects of vaccination;
- seeking to accommodate employees who refuse or fail to vaccinate against SARS-CoV-2.
Certain aspects of the Code are not entirely obligatory because of differing circumstances at each workplace. However, the Code still requires any employer or employee who departs from its provisions to “demonstrate justifiable reasons for doing so.”
The Code provides that every employer, in carrying out its risk assessment and Covid safety plan, must:
- “implement all necessary safety measures including those in respect of the vaccination of its employees and, taking into account the intervals between vaccinations, the dates by which the employees must be fully vaccinated;
- consult on the risk assessment and plan with any representative trade union as contemplated by section 14(1) of the LRA; and any health and safety committee established in terms of section 19 of the OHSA or, in the absence of such a committee, a health and safety representative designated in terms of section 17(1) of the OHSA or employee representative; and
- make that risk assessment and plan available for inspection by the trade union and committee and an inspector.”
It is most important that the Code’s requirement for employers to implement vaccination measures should not be misinterpreted. That is, the Code does not itself make Covid vaccinations mandatory. At most, the Code, read together with sections 12 and 15 of South Africa’s Constitution, indicates that employers may make Covid vaccinations mandatory where this is essential for workplace safety and where other measures for protecting employees from contracting Covid are not sufficient or viable.
Therefore, employers wishing to implement mandatory vaccination policies are still obligated, after following the Code’s requirements to:
- inform their employees on the results of the risk assessment; and
- educate their employees in the hazards of the spread of Covid and on the safety of the vaccine; and
- prove that there is no alternative but to enforce mandatory vaccinations;
- make every attempt to accommodate those employees who do not wish to be vaccinated.
Implementing the above requirements is not a simple task, and it, therefore, requires the assistance of health and legal experts.
In my next article, I will explain the Code’s requirements for the content of the Covid risk assessment.
To attend our 27 May webinar on MANAGING CONFLICT IN THE WORKPLACE please contact Ronni on ronni@labourlawadvcie.co.za or 0845217492.
