SOUTH AFRICA: END OF THE NATIONAL STATE OF DISASTER – WHAT IT MEANS FOR EMPLOYERS
Today (5 April 2022) marks the end of the National State of Disaster in South Africa. Just over two years since the country was initially placed under this state in terms of the Disaster Management Act, 2002 (DMA), the decision by Government to lift the State of Disaster has been welcomed by many. But what does this mean for employers? Can their employees immediately toss away their face masks and embrace their colleagues? We summarise the legal position as it currently stands below.
Except for a few provisions, which will continue to apply for a transitional period of 30 days (while the draft regulations under the National Health Act, 2003 are finalised), the regulations and directions issued under the DMA have now ceased to be of force and effect. This includes the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction) which has automatically lapsed.
Which provisions remain in place?
The provisions of the DMA Regulations and limited directions that continue to apply until 5 May 2022, include, inter alia:
- Regulation 67, which requires all persons to wear face masks when in an indoor public place, including in the workplace;
- Regulation 69, which places capacity limitations and number restrictions on gatherings. In the employment context, gatherings at a workplace for work purposes are still permitted, subject to strict adherence to all health protocols and social distancing measures;
- Regulation 75 governing international travel; and
- Chapter 8 of the DMA Regulations, and the newly enacted Directions, which establishes and governs the Covid-19 Vaccine Injury No-fault Compensation Scheme. The Scheme will continue to operate until the period for the lodgement of claims with the Scheme has expired and all claims lodged with the Scheme have been finalised.
Is there a replacement for the OHS Direction?
Yes. With the OHS Direction no longer in operation, the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace (Code) comes into effect today. For the most part, the Code contains similar provisions to those contained in the OHS Direction. This includes the consultation requirement with the health and safety committee/representative and majority trade union/s on possible vaccine requirements.
For details on how the Code differs from the OHS Direction, see our newsflash here.
The amended Hazardous Biological Agents Regulations (HBA Regulations), which came into force on 16 March 2022, will also apply.
Amongst other things, the HBA Regulations read with the Code, still require employers to conduct a risk assessment and to take reasonably practicable measures, based on the results of the risk assessment, to control the risk of exposure to the SARS-COV-2 virus in the workplace. This may include continued screening for Covid-19 related symptoms, the provision of hand sanitizer and maintenance of adequate space. It may also include a requirement for employees to be vaccinated.
What about employers who have already conducted risk assessments?
While many employers will have already conducted risk assessments when their employees initially returned to work, supplemented by an assessment to determine the suitability and reasonableness of a potential vaccination requirement, it may be advisable for employers to look at updating their risk assessments to ensure that they comply with the provisions of the HBA Regulations and the Code.
This will give employers an opportunity to re-evaluate their existing control measures in line with the current legal framework.
The amended HBA Regulations also provide for slightly different process requirements when it comes to the risk assessment. This includes the requirement to ensure that all employees as well as the health and safety representative or committee (as applicable) are informed of the results of the risk assessment, and given an opportunity to comment on it.
While the State of Disaster is no more, the SARS-COV-2 virus is still with us. Employers remain obliged to comply with their general duty, under the Occupational Health and Safety Act, 1993, to provide and maintain, as far as reasonably practicable a safe and healthy work environment for their employees and those who have access to their premises. This will require employers to continue to take appropriate health and safety measures in line with their risk assessments.