Estimated reading time: 6 minutes
On Tuesday, 15 March 2022, Thulas Nxesi, the Minister of Employment and Labour, has issued a code of practice on managing SARS-CoV-2 exposure in the workplace. Many regulations are set to change the work sector in several facets—including mandatory vaccinations regardless of belief or opinion.
The notice was issued following consideration by NEDLAC in accordance with section 203 (2A) of the Labour Relations Act, 1995 (Act No. 66 of 1995), to take effect on the date of the lapse of the Declaration of a National State of Disaster, 15 April 2022.
The update is to assist employers and employees in managing SARS-CoV-2 exposure in the workplace by guiding both in conducting or updating a risk assessment regarding SARS-CoV-2 exposure. This while jointly developing a plan to limit infection, transmission, and mitigate the risks of serious illness.
What can employers and employees expect in the coming weeks?
To better understand the new rules that employees and employers will have to follow, the law firm Werksmans Attorneys breaks it down, clarifying any possible issues.
Werksmans Attorneys highlights important elements of the Code of Good Practice, including the following:
· It recognises that the Regulations for Hazardous Biological Agents, 2022 (“HBA Regulations “) 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 possible 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, including the mandatory vaccination of employees.
This is critical to note, as the Code of Good Practice now specifically makes it an entitlement under the LRA 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.
Regarding mandatory vaccinations, Werksmans Attorneys points out the Code of Good Practice specifically and expressly continues the provisions of the Directions in this regard. It is likely that many employees and workplaces which have not yet adopted mandatory vaccination policies, on the basis that these may have become defunct when the state of disaster is lifted, are likely to do so now.
The law firm adds, “As much as Covid-19 appears here to stay, so too is the reality of the vaccinated workplace.”
Delving further into this, Werksmans Attorneys says 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 take the following steps:
- Notify the employee of the need to be vaccinated once the vaccine becomes available for that employee.
- 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 for vaccination and provide transport to and from vaccinations sites.
When looking at the previous rules, Werksmans Attorneys says, “A major difference between the Directions and the Code of Good Practice is that, 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 a 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 (religious or belief-based) objection to vaccination.
“A critical issue addressed by the Code of Good Practice is that employers may now require workers to disclose their vaccination status and to produce vaccination certificates. Naturally, any processing of this information must be done in accordance with the relevant Protection of Personal Information Act, 4 of 2013 (POPIA) requirements, and any POPI policies and procedures adopted by the employer,” the attorneys explain.
Under the Code of Good Practice, mandatory vaccination policies will also run alongside 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 facecloth masks, barriers, hand washing, sanitisers and surface disinfectants; and
- Any special measures to mitigate the risk of infection or severe illness or death in respect of individual employees at increased risk, such as reducing the number and duration of occupancy in meeting rooms.
The law firm further states that 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) and the obligations of employees under the OHSA 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 which 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.”
To read the complete set of regulations, click here.
What are your thoughts on the matter? Share your views in the comment section below.
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I absolutely agree with this
Why not just take away freedom of choice? And before you know it we will be governed by a totalitarian state. Vaccinations will be the last of your worries. This is utter BS
If the employer and government put it in writing that they will take responsibility for any side effects.
I will take it.
I agree with David if they take responsibility in writing. I had covid twice and had my own antibodies. Are they say anything of the people that die and side affects like parlays and blood clots.
And before such mandatory vaccination, at the employers cost, a certificate of good health to be placed on record, so as to prove any vax injuries that may arise. Treatment and compensation for such injured employee, to be covered in full by the employer (and the government).
How very coincidental…now that the worst “released” strain has passed they want to introduce mandatory vaccines. Could it be once again all about the money. Isn’t S.A. going to be producing their own vaccines in the Cape somewhere.? WHO couldnt bully us so now they getting money hungry polititions(paid im sure by WHO)to try and push vaccines. From what i saw S.A. had very low rates of death and a very low vaccinstion rate compared to other countries?? Look at NZ there numbers have gone through the roof and they are almost 100% vaccinated and 89% boosted…..conclusion bully/fear/CONTROLL tactics. Keep every one in their little boxes and obedient.
https://youtu.be/EASM6EzCVeg – Long list of side effects to look out for – Dr. John Campbell – 12 Mar 2022