In my previous article I explained that the New Code of Practice: Managing Exposure To Covid In The Workplace, 2022 requires employers to conduct a special health risk assessment (HRA) and to implement a plan to protect its employees from contracting Covid.
This code requires employers via their HRA’s and plans to:
- Identify employees who might be at risk of contracting Covid and/or who might pose a risk to the spread of the disease;
- Ensure the reporting of Covid symptoms by employees and isolation of employees who are diagnosed with COVID-19 and are symptomatic;
- Enforce all the workplace protective measures required to be taken;
- Implement a procedure to resolve any issue that may arise from the HRA by an employee invoking the right to refuse to work.
The Covid risk 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, use of PPE, and hygiene measures.
An employer must notify its workers of the contents of this Code and its plan and the manner in which it intends to implement it.
It must provide workers with information via means including, where reasonably practicable, leaflets and notices placed in conspicuous places in the workplace informing workers of:
- the dangers of the virus, the manner of its transmission, the measures to prevent infection
- the symptoms associated with COVID-19
- the nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccination, and the nature and risk of any serious side effects
In giving effect to this Code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate.
Employers must also make sure, amongst other things, that:
- employees who run out of paid sick leave must be assisted to make application for an illness benefit from the Unemployment Insurance Fund;
- employees with Covid are not discriminated against;
- if there is evidence that the worker contracted COVID in the course of employment, the employer lodges a claim with the Compensation Commissioner;
- it keeps the workplace well ventilated by natural or mechanical means;
- it notifies every employee identified as potentially contagious of the obligation to be vaccinated;
- gives employees paid time off to be vaccinated and provides transport for the employee to and from the nearest vaccination site.
If an employee refuses to be vaccinated, the employer must:
- counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
- take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
If an employee produces a medical certificate attesting that an employee has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense.
If the employer accepts the medical certificate or the employee is referred to a medical evaluation and that evaluation confirms that the employee has contra-indications for vaccination, it must accommodate the employee in a position that does not require the employee to be vaccinated.
This last requirement is likely to pose a major burden on an employer that truly has no available position in which to place the unvaccinated employee. On the one hand, the employer is strictly required to protect its workforce from colleagues with the disease, and on the other hand, is required to keep the unvaccinated employee in service in a position that poses a risk of spread of the disease. Employers in such an invidious position might consider resorting to an ill health incapacity process. However, due to the prescriptive wording of this code, such employers will need to consider their options with extreme caution before considering termination of the employment of such protected employees.
To attend our 27 May webinar on MANAGING CONFLICT IN THE WORKPLACE please contact Ronni on ronni@labourlawadvcie.co.za or 0845217492.
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