Dear EOHCB Member & Industry,
On Tuesday, 15 March 2022, the Minister of Employment and Labour gave notice of the Code of Good Practice: Managing Exposure to SARS-CoV-2 (COVID-19) in the workplace to take effect on the date of the lapsing of the declaration of a National State of Disaster declared on 15 March 2020. As recently communicated, the current state of disaster has been extended until 15 April 2022.
South Africa is planning to exit its coronavirus-induced state of disaster. This will bring an end to two years of regulations governed by the Disaster Management Act. Restrictions associated with different levels of lockdown to manage the COVID-19 pandemic will be incorporated into existing legislation.
Workplace rules have remained unchanged since June 2021. That's when last the department of employment and labour updated its Consolidated Direction on Occupational Health and Safety measures in certain workplaces.
Within the context of South Africa's Occupational Health and Safety Act (OHSA), these directions set the rules for mask-wearing, social distancing, and symptom screening at workplaces. The directions required employers to develop risk assessments plans to determine the risk of exposure and the control measures to limit infection. Part of these risk assessments included a provision for developing a mandatory vaccination policy, bearing in mind employees' Constitutional rights to bodily integrity and right to freedom of religion, belief, and opinion.
The new "Code of Good Practice" says all employers must take measures to determine the vaccination status of their workers. In due course, the Minister will issue Occupational Health and Safety regulations to supplement the new code.
The code's purpose is to assist employers and employees in managing SARS-CoV-2 exposure in the workplace by guiding employers and employees in conducting or updating a risk assessment in accordance with the OHSA and Hazardous Biological Agents, in respect of SARS-CoV-2 exposure, developing a plan to limit infection, transmission, and mitigate the risks of serious illness.
The code now requires that every employer must take measures to determine the vaccination status of their workers. Additionally, employers are empowered to require their employees to produce a vaccination certificate. Disclosure of an employees' vaccination status must be done in accordance with the relevant Protection of Personal Information Act (POPIA) requirements.
Highlights from the newly published Code of Good Practice:
- It recognises that the Regulations for Hazardous Biological Agents (HBA) under the Occupational Health and Safety Act (OHSA), list coronavirus as a listed hazardous biological agent, classed as Group 3. It, therefore, places legal responsibilities on employers in respect of employers to limit the exposure and mitigate the risks of infection by SARS-CoV-2;
- All employers are recognised to have direct and positive obligations under the OHSA to take steps to an employer to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to limit or mitigate the hazard or potential hazard. Employers must also ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities (such as customers, clients, or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety;
- Employers who employ less than 20 persons only have to take limited steps (they must undertake a risk assessment and take reasonably practical measures to mitigate the risk of infection or transmission, and if an employee has Covid-19 symptoms to refuse to allow the employee to access the workplace and isolate the employee and to provide closed spaces with reasonable ventilation);
- Employers must conduct a risk assessment to determine their obligations under OHSA and the HBA Regulations. The risk assessment must lead to a new or an amended plan to deal with safety measures, which can also include the mandatory vaccination of employees. This is critical to note, as the Code of Good Practice now specifically makes it an entitlement under the Labour Relations Act for employers to adopt mandatory vaccination policies;
- The protective measures adopted by an employer must be applied in respect of all workers. This includes employees, contractors, self-employed persons, or volunteers.
The Code of Good Practice specifically and expressly provides for mandatory vaccinations in the workplace. This is important as many employees and workplaces which have not yet adopted mandatory vaccination policies, on the basis that these may have become no longer in use when the state of disaster is lifted, are likely to do so now.
In terms of mandatory vaccination policies, the Code of Good Practice replicates the requirements of the directions in that if there is mandatory vaccination for any category of employees, the employer must:
- Notify the employee of the need to be vaccinated once the vaccine becomes available for that employee (note that the Code of Good Practice still does not require the employer to obtain or pay for the vaccine, but it would reasonably be required for the employer to assist the employee to register for either private or public vaccination);
- Counsel the employee on these issues and allow the employee to consult a health and safety representative a worker representative, or a trade union official;
- Give administrative support to register for and access vaccination certificate portals;
- Provide paid time off (covered by the industry Sick Pay Fund) for vaccination and provide transport to and from vaccinations sites
Whereas the directions allowed employees the right to refuse to be vaccinated on the basis of constitutional or medical grounds, the Code of Good Practice refers generally to an employee’s refusal to be vaccinated, but only requires the employer to make reasonable accommodation for such refusal where the employee produces a medical certificate attesting to the employee having contra-indications for vaccination, and the employer accepts such medical assessment or has such assessment confirmed at its own expense.
As such, it appears that the Code of Good Practice would be less generous to employees if they appeal to a non-medical objection to vaccination.
Under the Code of Good Practice, mandatory vaccination policies will also live side by side with the usual measures such as:
- Social distancing measures including minimising the number of workers in the workplace through rotation, staggered working hours, shift and remote working arrangements;
- PPE measures;
- Personal hygiene measures such as the wearing of face cloth masks, barriers, hand washing, sanitisers and surface disinfectants; and;
- Any special measures to mitigate the risk of infection or serious illness or death in respect of individual employees at increased risk such as reducing the numbers in and the duration of occupancy of the workspace.
A further emphasis that appears from the Code of Good Practice is that every worker is obliged to comply with the employer’s workplace plan, which can include mandatory vaccination, in addition to the obligations of employees under the OHSA and the HBA regulations. As such, there appears to be a stricter requirement on employees to take reasonable steps to adhere to mandatory vaccination plans, and an acceptance that such plans are reasonable measures that may be adopted under the OHSA and HBA Regulations to ensure that employers do not breach their obligations to ensure that workplaces are free of health and safety risks.
As the EOHCB obtains more information from the Minister, it will be shared with members and the industry. Should a member have any questions about the new Code of Good Practice, please feel free to contact your EOHCB representative.
The EOHCB Team