SOUTH AFRICA: MASKS AND OTHER HEALTH REQUIREMENTS IN THE WORKPLACE – WHAT NOW?
On Wednesday 22 June 2022, the Minister of Health repealed, with immediate effect, certain regulations relating to the Surveillance and the Control of Notifiable Medical Conditions, made in terms of sections 90(1)(j), (k) and (w) of the National Health Act, 2003, which were promulgated in May 2022.
The regulations that are repealed relate to the following:
- the wearing of masks in indoor public places;
- the limitation of gatherings to contain the spread of the SARS-COV-2 virus (including capacity and vaccination requirements); and
- the requirements of vaccination and antigen testing applicable to persons entering the country.
In light of this development, many employers are wondering whether they should stop the requirement of wearing face masks in the workplace, and in some instances, employers are reconsidering their vaccination policies.
Despite the repeal of the above regulations, employers should be aware that the Occupational Health and Safety Act 85 of 1993 (OHSA), the Hazardous Biological Agents Regulations (HBA Regulations), and the Code of Good Practice for Managing Exposure to SARS-COV-2 in the Workplace (Code) are still applicable and have not been repealed.
Accordingly, employers are required, in terms of the OHSA, to create and maintain a safe workplace. Employees also, have this obligation. The specific measures to be taken in a particular workplace will depend on the hazards that are identified in that particular workplace.
Further, the HBA Regulations published in terms of OHSA, list various hazardous biological agents, including the SARS-COV-2 virus and record that vaccines are available in respect of this virus.
These Regulations require employers to conduct a risk assessment by a competent person to determine the level of risk posed by the hazardous biological agents (in this case, Covid-19) as well as the reasonably practicable measures to be taken in order to mitigate this risk. In appropriate circumstances, this may include the requirement to be vaccinated in order to enter the workplace. The outcome of the risk assessment must be shared with the employees and their input must be considered.
The Code also contemplates a risk assessment and consultation with the majority union as well as the health and safety committee on the measures to mitigate the identified risks.
Accordingly, individual employers are still required to:
- Consider the risks of the SARS-COV-2 virus in the workplace by way of a risk assessment that complies with the Code and the HBA Regulations;
- Put a plan in place to mitigate the risks; and
- Set out in such a plan, reasonably practicable measures to mitigate the risk of the spread of Covid-19 in the workplace, which may include continued mask wearing, social distancing, sanitising, and in some instances, vaccination.
In light of the repeal of regulations relating to the Surveillance and the Control of Notifiable Medical Conditions, it is anticipated that unvaccinated employees will place increasing pressure on employers to withdraw their vaccination requirements.
Any decision taken by employers to either withdraw or continue with vaccination requirements, or to continue the requirement of mask wearing and social distancing measures, should be supported by recent, up to date medical and scientific evidence, and must be done in compliance with the employer’s obligations as set out above. If the science is still that, in the particular circumstances of the workplace, vaccination and/or mask wearing is an appropriate response to ensure a safe workplace, then this would be a legitimate rule, even if in broader society, these requirements have been relaxed.