The recent lifting of the National State of Disaster has left some confusion among employers as to their obligations and rights in dealing with Covid-19 in the workplace.
In its place the Department of Employment and Labour issued The Code of Good Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022 (‘the Code’) which came into effect on 5 April 2022.
The Code was introduced to ensure that employers continue to prevent and mitigate the risks associated with Covid-19 exposure in the workplace. The challenge was how to implement this without the inevitable delays of creating new legislation which would require the authority of parliament. Appropriately, the existing Occupational Health and Safety Act (“OHSA”) is used as the enabling legislation.
The Code is read with the Regulations for Hazardous Agents (‘the Regulations’) published in terms of section 43 of the OHSA. Under the Regulations, Covid-19 has been listed as a hazardous biological agent under Group 3. In line with the OHSA, the Code has placed a primary obligation on an employer to conduct a risk assessment and on the basis of the risk assessment prepare or revise its plan to implement reasonably practicable measures to limit infection and transmission of the virus, as well as mitigate the risk of serious illness or death of employees. Regulation 6(1) of the Code provides that both the risk assessment and plan must include:
- the criteria used to identify employees who must be vaccinated;
- the process of reporting symptoms and isolating employees who exhibit Covid-19 symptoms;
- protective measures used to limit the spread of Covid-19;
- a procedure to resolve disputes arising from an employee’s refusal to work because of safety concerns the manner in which the abovementioned obligations imposed by the Code will be complied with.
The employer is not limited to the abovementioned peremptory obligations when conducting the risk assessment and preparing or revising its plan. The employer may thereafter adopt additional measures suitable for its workplace.
On the issue of vaccination, in terms of regulation 12, the Code provides a legislative basis in terms of which an employer may require employees to be vaccinated, for them to perform their duties. Where an employee must be vaccinated to perform his or her duties, the employer must:
- communicate the obligation to be vaccinated to the employee;
- counsel the employee on issues related to the vaccines;
- allow the employee, at the employee’s request to consult a health and safety representative, a worker representative, or a trade union official;
- provide administrative support to the employees to register and to access their COVID-19 vaccination certificates; and,
- give the employee paid time off to be vaccinated and provide transport for the employee to and from the nearest vaccination site
The Code recognises that despite the provision of a mandatory vaccination policy, there may be instances where an employee refuses to vaccinate on any other grounds other than medical grounds such as religious grounds or personal grounds. In such instances, the Code requires the employer to counsel the employee and take steps to reasonably accommodate the employee and place them in a position that does not require them to be vaccinated.
Implicit in the OHSA is that the obligations to ensure a safe working environment are reciprocal to both employee and employer. This opens the door for an employer to rely on its rights under the Labour Relations Act for dismissal in circumstances where an employee cannot be accommodated. The consultative approach prescribed by the Code suggests that such a dismissal must be construed as a no-fault dismissal. Accordingly, this would appear to fall into a category of a dismissal for operational requirements.
Operational requirements and circumstances differ with each employer. As a result, reasonable accommodation may not always be possible and dismissal may be justified. However, the requirement that an employer should, where the employee’s refusal to vaccinate is not based on medical grounds, reasonably accommodate the employee, suggests that dismissal should be a measure of last resort.
Where an employee bases his or her refusal to vaccinate on medical grounds, the employer may require the employee to subject himself or herself to medical evaluation at the employer’s expense. Where the medical practitioner appointed by the employer confirms that the employee has contra-indications for vaccination, then the employer must accommodate the employee.
Given the nature of Covid-19, it is important that employers have appropriate measures in place that anticipate and accommodate the volatility of the virus, to curb its impact in the workplace. Where an employer has not done so, it is imperative that it conducts a risk assessment and develops a plan from the findings of the risk assessment. Where the risk assessment and plan exist update them in line with the Code.
Observing the contents of the Code will not be an easy task, and will require the aid of legal experts. Contact us for assistance with a risk assessment and plans tailored to your needs.