Managing Exposure To COVID-19 In The Workplace

On 15 March 2020, a national state of disaster was declared in terms of the Disaster Management Act (Act 57 of 2002), and the Minister issued regulations in terms of this act, which have been amended on several occasions to respond to the changing circumstances of the pandemic.

Further, on 11 June 2021, during the roll out of the COVID-19 vaccination, the Department of Employment and Labour published the Consolidated Direction on Occupational Health and Safety Measures, which made provision for employers to consider introducing mandatory vaccinations in the workplace, and which has been dealt with in a previous issue(s).

During the course of last week, the population at large waited with bated breath for the Minister to lift the state of disaster, however, the Minister instead extended the state of disaster to 15 April 2022, much to most people’s disappointment.

Optimistically, it is expected that this may be the last extension, and that the state of disaster will be lifted on 15 April 2022, which means that the above mentioned regulations issued will no longer have any legal effect.

Although the restrictions put in place to curb the spread of the virus have already been significantly relaxed, and there is a possibility that the state of disaster may be lifted, it must be borne in mind that COVID-19 is set to be around for a while, and employers are still required to ensure a safe working environment for all of their employees.

To this end, government has published the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022, which is set to replace existing COVID-19 workplace rules once the state of disaster is lifted, and the rights, measures and obligations of employers and employees will now become responsibilities under the Labour Relations Act.

The Code is briefly summarised below:

  • Employees remain obligated to undertake a risk assessment and to amend existing workplace plans on the basis of such risk assessments, which include any measures to be implemented in respect of the vaccination of employees.
  • Employers must notify their employees of the contents of the code, and the manner in which the code will be implemented at the workplace.
  • Employees must be provided with information raising awareness of the virus, that informs employees about the measures to prevent infection, e.g. social distancing, cough/sneezing etiquette etc.
  • Measures must be put in place to determine the vaccination status of employees.
  • Employees are required to inform employers if they experience any COVID-19 symptoms immediately.
  • The Code provides for the isolation of symptomatic COVID positive employees in accordance with the periods recommended by the Health Department.
  • Typical measures remain in place such as ventilation obligations, any requirements for specialised PPE, social distancing and personal hygiene, etc.

Clause 12 of the Code specifically provides for the vaccination of employees in the workplace, and confirms the following:

  • All employees identified to be vaccinated, in terms of a risk assessment undertaken by the employer, must be notified of their obligation to be vaccinated.
  • Employers must counsel employees on issues related to vaccines, and permit an employee to consult a health and safety representative/worker representative/trade union official.
  • Employers must provide paid time off for an employee to be vaccinated, and to provide transport to the nearest vaccination site.
  • In the event of a refusal to undergo a vaccination, employers are required to counsel such employees, and allow an employee to seek guidance from a health and safety representative/worker representative/trade union official, upon request.
  • An employer is obliged to take steps to reasonably accommodate an employee who refuses to be vaccinated.
  • In the event that an employee can produce a medical certificate in support of contra-indications to the vaccination, the employer may refer the employee for a medical evaluation in confirmation thereof, at the employer’s expense.
  • Should an employer accept a medical certificate mentioned herein above, or the employer’s evaluation confirms contra-indications to the vaccination, such an employer must accommodate the employee in a position that does not require the employee to be vaccinated.

In terms of the Code, employees may refuse to perform work if there is a reasonable probability that the work poses a serious risk of exposure to the virus, and such an employee is required to notify the employer as soon as reasonably possible.

In this regard, the employer is obliged to consult in order to make attempts to resolve the matter, failing which, a Department of Employment and Labour inspector must be notified, and should such an inspector issue a prohibition order, an employer must comply with the order.

Employees may not be dismissed, disciplined, prejudiced or harassed for their refusal to perform the work, and any dispute in this regard may be referred to the CCMA and/or a Bargaining Council in accordance with section 191 of the LRA.

The Code does not address whether an employee is expected to perform the duties until the issue is resolved and/or whether the period of refusal to work will be on a no-work-no-pay basis.

Interestingly, there is further no provision for an employee’s refusal to undergo a vaccination based on constitutional or medical grounds, i.e. the Code merely refers to a refusal to undergo a vaccination, and it appears from the Code, that there is a stricter requirement on employees to adhere to an employer’s mandatory vaccination policy.