By Kate Collier, Partner, Mehnaaz Bux, Partner & Jenna Atkinson, Associate at Webber Wentzel

A new Code of Practice has been issued to guide employers on measures that need to be taken in the workplace to contain Covid-19 infections, once the National State of Disaster ends

To control the spread of SARS-CoV-2 (Virus), employers had to take specific measures to prevent transmission in workplaces and, as far as reasonably practicable, prevent employees from being exposed to the harm that may be caused through contracting the virus. These measures were initially guided by an employer's overarching obligations in the Occupational Health and Safety Act, 1993 (OHSA), which were later supplemented by the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, issued under the Disaster Management Act, 2002 (Current OHS Directive).

Ahead of the widely discussed lifting of the National State of Disaster (and the related repeal of the regulations published under the Disaster Management Act to deal with the Virus) employers are grappling with what measures will be necessary and/or required of them in future.

The Minister of Employment and Labour has gazetted a new Code of Practice: Managing Exposure to Covid-19 in the Workplace (COP) under the Labour Relations Act, 1995. The COP confirms that when the State of Disaster ends, the OHS Directive will cease to have legal effect, however specific measures are still necessary within workplaces.

The COP applies to workplaces that fall within the ambit of the OHSA. Although mines, mining areas and works as contemplated in the Mine Health and Safety Act are excluded from its scope, section 18 of the COP renders certain sections applicable when a mine has required its employees to be vaccinated. If a mine requires its employees to be vaccinated, section 12(4) – (6) related to counselling, accommodation and medical refusals apply. This is a material change and should be carefully considered by all employers in those industries.

Interestingly, the COP was not issued in terms of the OHSA. However, it reiterates employers’ obligations to their employees and all persons who may be affected by their activities. Generally, the OHSA recommends a risk-based approach, requiring employers to identify, assess and respond to hazards in the workplace and take steps to eliminate or mitigate the risk associated with those hazards. This obligation remains in respect of Covid-19. The COP sets out the identified hazard that employers must assess and control:

• the Virus infecting a worker;

• the transmission of the Virus by an infected person to other workers;

• the risk of severe illness or death if a worker is infected; and

• the transmission of the Virus by members of the public, where the public has access to a workplace.

Each situation must be separately assessed and will require the employer to take measures to control the assessed risk.

The Regulations for Hazardous Biological Agents (HBA Regulations) under the OHSA already list coronaviruses in the guideline issued on measures to be taken, noting that:

• "the selection of control measures for biological agents should take into account the fact that there is no exposure limit for them. Their ability to replicate and to infect at very small doses means that exposure may have to be reduced to levels that are diminishingly low;
• for each activity the first consideration should be whether it can be carried out in a way that involves exposure to a less harmful biological agent…if there is more than one way of carrying out the activity then the method carrying the least risk should be chosen;
• If the least harmful alternative still involves exposure or potential exposure and it is not reasonably practicable to prevent exposure by some other means, then exposure should be adequately controlled. The HBA Regulations require that the control measures listed in Annexure E of those regulations be considered and used where applicable and if a risk assessable shows that it will lead to a non-negligible reduction in risk".

Not all listed measures in the HBA Regulations will be required in every case. The HBA Regulations guideline indicates that all measures may not be necessary, for example, where there is a low prevalence of infection associated with a particular activity and that illness is easily treatable, leading to rapid and complete recovery.

Employers should carefully consider the HBA Guideline in conjunction with their own workplace and activity specific risk assessment, as each scenario must be assessed for the workplace and its activities. There is no "one size fits all" approach.

In addition to the risk-based approach under the OHSA and HBA Regulations, the COP requires a risk-based approach and acknowledges that workplaces and their requirements differ. Departures from the non-obligatory provisions of the COP may be justified.

Risk assessment and plan

Every employer must conduct a risk assessment to determine the risk of exposure and the control measures to limit infection, transmission and mitigate the risk of serious illness or death of employees and other persons who may be directly affected by the workplace activities.

An employer's risk assessment must give effect to its obligations under both the OHSA and the HBA Regulations.  Certain workplace protective measures (such as PPE and ventilation) may also be required in terms of the HBA Regulations.

On the basis of the risk assessment, an employer must develop or amend its existing plan to include (among other things) any measures to be implemented to vaccinate its employees and (taking into account the intervals between vaccinations) the dates by which the employees must be fully vaccinated.

There is a mandatory consultation obligation. The risk assessment and the plan must be discussed with any representative trade union and the health and safety committee (or representative, where applicable). Both the risk assessment and plan must be available for inspection by the trade union, committee and an inspector.

The COP sets out minimum prescribed contents of the risk assessment and the plan, including consideration of the measures set out in the HBA regulations, specifically factors such as PPE and ventilation. Other obligatory considerations relate to management of symptomatic employees and the resolution of disputes when employees invoke their right to refuse to work.

Factors which may be considered (and which are not mandatory in terms of the COP) are control measures such as social distancing, additional PPE, hygiene such as masks and sanitising. Of course, where a risk assessment shows that any of these measures is required to reduce risk, the employer must implement and enforce those measures.

Employees are required to comply with the employer's plan.

Employer to provide information

In addition to compliance with section 13 of the OHSA, the COP requires specific notification to workers about the COP and the employer's plan, including how the employer intends to implement it.

Information must be provided on Covid-19 and prevention measures, the symptoms of Covid-19, vaccines in use in South Africa and the benefits, contra-indications, nature and risk of any serious side effects.  A footnote to the COP refers employers to the NIOH site on vaccine FAQs.

Employees' vaccination status and symptom reporting

Every employer must take measures to determine the vaccination status of its workers and, in giving effect to the COP, may require its employees to disclose their vaccination status and to produce a vaccination certificate.

Workers must be required to immediately report any symptoms associated with Covid-19 (as described by the NICD from time to time).

Covid-19 testing

If an employee informs the employer that they are experiencing Covid-19-related symptoms, an employer may require that employee to be tested for Covid-19 before permitting the employee to enter the workplace or report for work.

No deduction from employee’s remuneration

Employers may not make any deduction from an employee's remuneration or require or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide or to do in terms of the COP.

Symptomatic employees

Only those workers who have been diagnosed with Covid-19 and are symptomatic must: (i) inform their employer and (ii) isolate themselves for the period recommended by the National Department of Health (or a longer period, if recommended by a medical practitioner). These employees must be placed on sick leave and may not be discriminated against. If it appears that the worker contracted Covid-19 arising from and in the course of employment, a claim in terms of COIDA must be lodged with the Compensation Fund.

Requiring employees to be vaccinated

The COP still allows employers to determine, by risk assessment, that employees be vaccinated. The refusal of an employee to be vaccinated is also contemplated. If an employee refuses, an employer must counsel the employee and take steps to reasonably accommodate the employee in a role that does not require vaccination.

However, if an employee presents a medical certificate referring to contra-indications and the employer accepts the certificate (or obtains a second evaluation that confirms the medical certificate) that employee must be accommodated in a position that does not require vaccination.

Refusal to work

The COP retains the right of an employee to refuse to perform any work which reasonably appears to that employee or a health and safety representative to pose an imminent and serious risk of exposure to the Virus. Once notified of this refusal, the employer must endeavour to resolve the issue. If the issue cannot be resolved internally, an inspector must be notified.

This right may be used irrespective of any other internal processes and an employee may not be threatened, intimidated, dismissed or otherwise prejudiced for invoking this right. Disputes about this protection are referred to the CCMA.

Application to mines

Section 18 of the COP provides that if a mining employer requires its employees to be vaccinated as part of its mandatory code of practice, the following sections apply to any employee who refuses or fails to be vaccinated:

• Section 12(4) - If an employee refuses to be vaccinated, the employer must (a) counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official and (b) take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

• Section 12(5) - 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.

• Section 12(6) - If the employer accepts the medical certificate or the employee is referred to 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.