On 15 March 2022, the Minister of Employment and Labour signed the newly drafted Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022 (the Code)
The Code, which will come into effect when the National State of Disaster lapses, was drafted by Halton Cheadle of BCHC at the request of the Minister of Employment and Labour and Nedlac.
The object of the code is to provide a seamless transition from the Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces (the Direction) under the National State of Disaster.
BCHC is proud to say that Halton Cheadle, one of our consultants, was briefed by the Minister of Employment and Labour to draft the Code on the instructions of the social partners in NEDLAC.
The Occupational Health and Safety Act, 85 of 1993 (“OHSA”) places an obligation on an employer to provide employees with a safe working environment. There has been some uncertainty and much debate in relation to the extent of employers’ obligations and rights in so far as Covid-19 vaccination is concerned.
One of the Code’s purposes is to guide employers and employees in managing exposure to Covid-19 in the workplace by providing guidance on conducting or updating of risk assessments; developing a plan to limit infection, transmission and to mitigate the risks of serious illness or death on the basis of the risk assessment; implementing the plan; managing absence from work due to infection, isolation and adverse effects of vaccination; and accommodating employees who refuse or fail to vaccinate when a mandatory vaccination policy is implemented by employers.
The Code requires “any person interpreting an employment law to take this Code into account in respect of any matter arising from its application.” It specifically lists employees, trade unions, employers, employers’ organisations, inspectors, conciliators, arbitrators, and judges in this regard.
Importantly, in acknowledging that workplaces and their requirements differ, the Code recognises that departures from the non-obligatory provisions of the Code may be justified in appropriate circumstances. It qualifies this, however, by stating that any employee or employer who departs from the non-obligatory provisions of the Code must show justifiable reasons for doing so.
The Code differs substantially in the following respects from the Direction which currently applies:
The Code introduces a vaccination obligation in the workplace in respect of employees whose employers require them to be vaccinated on the basis of a risk assessment.
Every employer must take measures to determine the vaccination status of their workers.
If an employee suffers from an “adverse event” following vaccination that renders the employee unable to work, on receipt of a medical certificate, the employer must give the employee paid time off to recover if the employee is no longer entitled to paid sick leave or, subject to the regulations of the Covid Vaccine Injury No-Fault Compensation Scheme, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993.
If an employee produces a medical certificate attesting that, that employee has contra-indications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense. Importantly, if the employee’s medical certificate is accepted by the employer or the employee is referred to medical evaluation and that evaluation confirms that the employee has contra-indications for vaccination, the employee must be accommodated in a position that does not require the employee to be vaccinated.
All employers would have to make their risk assessment and plan available for inspection by a trade union, health and safety representatives and an inspector.
There is also no mention of the currently required Covid-19 compliance officer to oversee the implementation of the plan.
On 18 February 2022, the Department of Health issued a circular relating to quarantine, isolation, and contact tracing. People who are infected with Covid-19 but are asymptomatic no longer have to isolate for 10 days but are advised to avoid social interaction for 5 days from the date of the positive test and to wear a mask when interacting with people. Those with mild symptoms (who do not require hospitalisation) should isolate for 7 days from the start of their symptoms with no need for testing before de-isolating. Those with severe disease (who have been admitted to hospital) should isolate for 7 days from the date on which they no longer require oxygen therapy, with no need for testing before de-isolating. All quarantine and active contact tracing should be stopped subject to certain requirements. Notwithstanding the DOH’s guidelines, the Code provides that an employer may still require employees to be tested for Covid-19 before permitting them to enter the workplace or to report for work.
After two years of ever-changing regulations and uncertainty, the Code will provide clarity when the National State of Disaster finally comes to an end.