The government has published a new code of practice that is set to replace the existing Covid workplace rules in South Africa if the state of disaster is expected to be lifted on 15 April 2022.
Werksmans Attorneys unpacked the new code and explained what it means for businesses, employees and thrifty businesses such as mandatory vaccinations
During the height of the pandemic, the Department of Employment and Labor entered Consolidated direction on occupational health and safety measures at certain workplaces published on 11 June 2021.
“Earlier versions of the guidelines set out the now tedious requirements of mask wear, social distance, care of other personal protective equipment, cleanup of workplace surfaces, hand washing and the various other workplace measures that have, in no small part, helped in achieving this. of reducing the spread of Covid in general, “Werksmans said.
“The latest version of the directive, released in June 2021, introduced the possibility for employers to introduce mandatory vaccination policies for the workplace.”
In short, the guidelines allowed – and will continue to do so until at least April 15, 2022 – an employer to conduct a risk assessment to determine if it will make the vaccination of employees mandatory, the company said.
“These risk assessments should assess whether it is necessary to make vaccination mandatory in the workplace, based on the employer’s operational requirements. The employer can therefore, after his risk assessment and considering his operational requirements and work environment, decide that he does not make vaccination compulsory. “
New code of good practice
After April 15, 2022, it is expected that the indications will expire along with the state of disaster and will cease to have any legal effect.
As much as this is welcomed, Covid will not disappear from the lives of employers and employees, and concerns about what steps an employer should take to ensure it provides healthy and safe working conditions remain relevant.
As such, the Department of Labor and Employment, in consultation with Nedlac, has issued a Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace Under the Employment Relations Act.
This essentially copies and pastes the content of the previous instructions, and makes the rights, measures and obligations required of employers and employees obligations under the Employment Relations Act, Werksmans said.
Key elements of the Code of Good Practice include:
- It recognizes that the Regulations for Hazardous Biological Agents under the Occupational Health and Safety Act (OHSA) list the coronavirus as a listed hazardous biological agent, classified as Group 3. It therefore places legal responsibilities on employers regarding employers to reduce the exposure and the risks of infection by SARS-CoV-2;
- All employers are recognized as having direct and positive obligations under the OHSA to take steps to enable an employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to workers’ health and to take such steps as may be reasonably practical to limit or mitigate the danger or potential danger. Employers should also ensure, as far as reasonably practicable, that all persons directly affected by their activities (such as customers, clients or contractors and their workers entering or coming into contact with their workplace) their employees) are not exposed to dangers to their health or safety;
- Employers who employ less than 20 people should only take limited steps (they should conduct a risk assessment and take reasonable practical measures to reduce the risk of infection or transmission, and if an employee has Covid-19 symptoms) to refuse to allow the employee access to the workplace and insulate the employee and provide enclosed spaces with adequate ventilation);
- Employers must conduct a risk assessment to determine their obligations under OHSA and the HBA regulations. The risk assessment should lead to a new or a modified plan to deal with safety measures, which may also include the mandatory vaccination of employees. This is critical to note, as the Code of Good Practice now specifically states that it is a right under the LRA for employers to adopt mandatory vaccination policies;
- The protective measures adopted by an employer must be applied to all workers. This includes employees, contractors, self-employed or volunteers.
The Code of Good Practice specifically and explicitly provides for mandatory on-the-job vaccinations.
This is important because many workers and workplaces that have not yet adopted mandatory vaccination policies, on the grounds that these may have disappeared when the state of disaster is lifted, are now likely to do so, Werksmans said.
In terms of mandatory vaccination policies, the Code of Good Practice replicates the requirements of the directions in that if there is mandatory vaccination for each category of employees, the employer must:
- Inform the employee about the need to vaccinate if the vaccine is available to that employee (note that the Code of Good Practice still does not require the employer to receive or pay for the vaccine, but it would be reasonable for the employer to help) the employee to register for private or public vaccination);
- Advise the employee on these issues and have the employee consult a health and safety representative, a labor representative, or a union official;
- Provide administrative support for registering for and accessing vaccination certificate portals;
- Provide paid time for vaccination and arrange transportation to and from vaccination sites.
“While the designation gave employees the right to refuse to vaccinate on constitutional or medical grounds, the Code of Good Practice generally refers to the refusal of an employee to vaccinate, but only requires the employer to make reasonable accommodations for such refusal where the employee produces a medical certificate proves that the employee has contraindications to vaccination – and the employer accepts such a medical assessment, or has confirmed such an assessment at his own expense.
As such, it looks like it would be the Code of Good Practice less generous to employees if they appeal a non-medical objection to vaccinationsaid Werksmans.
The Code of Good Practice also states that employers can now require workers to disclose their vaccination status and produce vaccination certificates.
“Of course, any processing of this information must be done in accordance with the relevant Personal Data Protection Act, 4 of 2013 (POPIA) requirements, and all POPI policies and procedures adopted by the employer,” Werksmans said.
Typical measures continue
Under the Code of Good Practice, mandatory vaccination policies will also live side by side with the usual measures such as:
- Social distance measures, including minimizing the number of workers on the work floor through rotation, split working hours, shifts and distance working arrangements;
- PPE measures
- Personal hygiene measures such as wearing face masks, barriers, hand washing, disinfectants and surface disinfectants; en
- Any special measures to reduce the risk of infection or serious illness or death for individual employees at increased risk, such as reducing the numbers in and duration of occupancy in meeting rooms.
“A further emphasis emerging from the Code of Good Practice is that every employee is required to comply with the employer’s workplace plan – which may include mandatory vaccination – in addition to the obligations of employees under the OHSA and HBA regulations. , “said Werksmans.
“As such, there seems to be a stricter requirement for staff to take reasonable steps to comply with mandatory vaccination plans, and an acceptance that such plans are reasonable measures that can be adopted under the OHSA and HBA regulations to to ensure that employers do not breach their obligations to ensure that workplaces are free from health and safety risks.
Commentary by Bradley Workman-Davies and Kerry Fredericks of Werksmans Attorneys.
Updated Covid rules for businesses and workers in South Africa – including mandatory vaccinations
Source link Updated Covid rules for businesses and workers in South Africa – including mandatory vaccinations