On 15 March 2022, the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, announced that South Africa’s National State of Disaster had been extended to 15 April 2022. This announcement came as a shock to many, as South Africa would now be entering its 25th month of pandemic response.
But, with any announcement comes various additions and amendments to existing policies. One such addition is the Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace (“the code”), as introduced by the Minister of Employment and Labour, Thembelani Nxesi, on 15 March 2022.
Before the code was introduced, the Minister had published revised regulations (“the regulations”) on the Occupational Health and Safety Act in certain workplaces on 11 June 2021. These regulations were aimed at addressing the safety of employees in the workplace against COVID-19 exposure, workplace plans and the employer’s obligations, as well as the topic of possible mandatory vaccination policies.
The new code does not necessarily replace the previous regulations, but now creates the situation whereby the rights and obligations of both employees and employers become enforceable obligations under the Labour Relations Act, Basic Conditions of Employment Act, Occupational Health and Safety Act (“the OHSA”) and the Regulations for Hazardous Biological Agents (“the HBA”).
Risk Assessment Plans
One of the major additions in the code relates to the risk assessment requirements for businesses during the pandemic. In so far as the employer’s conducting risk assessment plans in line with the OHSA ad HBA regulations. This places a positive obligation on every employer to review their existing workplace plans to deal with the pandemic.
This risk assessment plan is further aimed at addressing symptomatic employees, processes whilst employees are in isolation and recovery, workplace protective measures and dispute resolution in the workplace.
Another interesting addition is that employers with less than 20 employees can breathe a sigh of relief, as they do not have to adhere to the code as strictly as employers with a more substantial workforce. Only a limited number of steps have to be taken by smaller-scale businesses to mitigate the risk and spread of the virus.
Mandatory Vaccination Policies
What is noteworthy about the new code is section 12, which is a highly controversial topic in South Africa as we write this article. Section 12 relates to mandatory vaccination policies in the workplace and further discusses policies. One prominent issue is that employers only have to make reasonable accommodations when an employee refuses to vaccinate based on medical grounds only. Since there is no set guideline on what the employer has to do to accommodate an unvaccinated employee, employers are cautioned not to overlook these circumstances.
Employers are now afforded the right to arrange for an employee to be assessed by a medical practitioner to investigate if there are valid medical grounds for refusing to receive a vaccine.
Further references to constitutional and religious grounds for a refusal to vaccinate have also been removed from the code, which is in stark contrast to the previous regulations. This is an interesting position as it limits the reasons that employees may provide to side-step a mandatory vaccination policy.
Concluding remarks
What is evident from the code is that it implies that each and every employee ought to strictly comply with workplace plans implemented by their employers, failing which may prove detrimental to their employment. This can be found in Section 14 of the code. The code thus provides for express obligations on the part of both the employer and employee.
It will be fascinating to witness how the CCMA, Bargaining Councils and Labour Courts interpret and apply this code as there will undoubtedly be countless cases associated with these changes.
It is advisable that employers obtain legal advice on whether mandatory vaccination plans would be a viable option for their business operations or not. Should you and/or your organisation require advice contact Malcolm Lyons & Brivik Attorneys Inc.
Marco van der Walt (Author)
Professional Assistant at Malcolm Lyons and Brivik Attorneys Inc.
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