New Covid measures for employers even after the lifting of the state of disaster

The publication of new regulations to contain the spread of Covid-19 – to replace the emergency regulations enacted under the state of disaster – has elicited strong criticism, with people accusing politicians of aiming to entrench unnecessary regulations only to extend their power.

The new Code of Practice was issued a few weeks ago and is designed to enforce measures to be taken in the workplace to contain Covid-19 infections after the lifting of the National State of Disaster. The latter was announced by President Cyril Ramaphosa on Monday night.

However, a discussion of the document discloses that existing legislation covers a lot of the “new measures” that are under scrutiny, as well a few sticky situations that are bound to crop up.

Kate Collier and Mehnaaz Bux, partners at law firm Webber Wentzel, and associate Jenna Atkinson, note in a discussion of the new regulations that authorities reiterated employers’ obligations to their employees and all persons who may be affected by their activities, including clients and customers.

“To control the spread of SARS-CoV-2, employers had to take specific measures to prevent transmission in workplaces and, as far as reasonably practicable, prevent employees from being exposed to the harm that may be caused through contracting the virus,” they say.

“Ahead of the [at the time] widely discussed lifting of the National State of Disaster (and the related repeal of the regulations published under the Disaster Management Act to deal with the virus) employers are grappling with what measures will be necessary and/or required of them in future.”

Code of Practice

Their report points out that the minister of employment and labour has gazetted the new Code of Practice: Managing Exposure to Covid-19 in the Workplace (COP) under the Labour Relations Act.

This code confirms that when the state of disaster ends, the previous directives issued under the state of disaster will cease to have legal effect. However, it is believed that specific measures are still necessary within workplaces.

“These measures were initially guided by an employer’s overarching obligations in the Occupational Health and Safety Act, 1993 (OHSA), which were later supplemented by the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, issued under the Disaster Management Act, 2002 (referred to as the current OHS Directive),” says Webber Wentzel.

“The COP applies to workplaces that fall within the ambit of the OHSA.”

Read: The State of Disaster is a disaster

“Although mines, mining areas and works as contemplated in the Mine Health and Safety Act are excluded from its scope, section 18 of the COP renders certain sections applicable when a mine has required its employees to be vaccinated.

“If a mine requires its employees to be vaccinated, section 12(4) – (6) related to counselling, accommodation and medical refusals apply. This is a material change and should be carefully considered by all employers in those industries,” it adds.

The legal experts say it is interesting that the new code was not issued in terms of the OHSA.

“However, it reiterates employers’ obligations to their employees and all persons who may be affected by their activities. Generally, the OHSA recommends a risk-based approach, requiring employers to identify, assess and respond to hazards in the workplace and take steps to eliminate or mitigate the risk associated with those hazards.

“This obligation remains in respect of Covid-19. The COP sets out the identified hazard that employers must assess and control,” they say.

The trio list specific requirements of such an identified hazard:

• The virus infecting a worker;
• The transmission of the virus by an infected person to other workers;
• The risk of severe illness or death if a worker is infected; and
• The transmission of the virus by members of the public, where the public has access to a workplace.

The new code requires that each situation be separately assessed and requires that employers take measures to control the identified risks.

Existing regulations

The discussion of the new code points out that existing legislation already lists coronaviruses.

The Regulations for Hazardous Biological Agents (HBA regulations) under the OHSA already lists coronaviruses in the guideline issued on measures to be taken, noting that:

• The selection of control measures for biological agents should take into account the fact that there is no exposure limit for them. Their ability to replicate and to infect at very small doses means that exposure may have to be reduced to levels that are diminishingly low;
• For each activity the first consideration should be whether it can be carried out in a way that involves exposure to a less harmful biological agent … if there is more than one way of carrying out the activity then the method carrying the least risk should be chosen;
• If the least harmful alternative still involves exposure or potential exposure and it is not reasonably practicable to prevent exposure by some other means, then exposure should be adequately controlled. The HBA Regulations require that the control measures listed in Annexure E of those regulations be considered and used where applicable and if a risk assessable shows that it will lead to a non-negligible reduction in risk.

When looking at these existing regulations, is seems that not all listed measures in the HBA regulations will be required in every case.

“The HBA Regulations guideline indicates that all measures may not be necessary, for example, where there is a low prevalence of infection associated with a particular activity and that illness is easily treatable, leading to rapid and complete recovery,” says Webber Wentzel.

“Employers should carefully consider the HBA Guideline in conjunction with their own workplace and activity specific risk assessment, as each scenario must be assessed for the workplace and its activities. There is no ‘one size fits all’ approach.”

The new code of practice requires a risk-based approach similar to that already required under existing rules. It acknowledges that workplaces and their requirements differ and might allow departures from the non-obligatory provisions of the COP.

Risk assessment and plan

Every employer must conduct a risk assessment to determine the risk of exposure and the control measures to limit infection, transmission and mitigate the risk of serious illness or death of employees and other persons who may be directly affected by the workplace activities.

The lawyers say that an employer’s risk assessment must give effect to its obligations under both the OHSA and the HBA Regulations. Certain workplace protective measures (such as PPE and ventilation) may also be required in terms of the HBA Regulations.

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On the basis of the risk assessment, an employer must develop or amend its existing plan to include (among other things) any measures to be implemented to vaccinate its employees and (taking into account the intervals between vaccinations) the dates by which the employees must be fully vaccinated.

There is a mandatory consultation obligation. The risk assessment and the plan must be discussed with any representative trade union and the health and safety committee (or representative, where applicable).

Both the risk assessment and plan must be available for inspection by the trade union, committee and an inspector.

“The COP sets out minimum prescribed contents of the risk assessment and the plan, including consideration of the measures set out in the HBA regulations, specifically factors such as PPE and ventilation,” say Collier, Bux and Atkinson.

“Other obligatory considerations relate to management of symptomatic employees and the resolution of disputes when employees invoke their right to refuse to work,” they add.

“Factors which may be considered (but are not mandatory in terms of the COP) are control measures such as social distancing, additional PPE, and hygiene, such as masks and sanitising. Of course, where a risk assessment shows that any of these measures is required to reduce risk, the employer must implement and enforce those measures.”

Some of the new obligations

The legal experts highlight several of the obligations required under the new cope of practice:

• Employees are required to comply with the employer’s plan;
• The employer must provide information on its plans and the plan must be available to all employees, unions representatives and labour inspectors;
• The code includes provisions to report employees’ vaccination status and the employer will be allowed to ask for a vaccination certificate;
• Employers can refuse entry to the place of work and demand a Covid-19 test when employees show symptoms;
• No deduction from an employee’s remuneration will be allowed to cover the cost of implementing necessary measures; and
• Infected employees must isolate or quarantine and time off work will be regarded as sick leave.

Two problems?

Two of the obligations in the COP are bound to be potentially problematic.

The COP still allows employers to require that employees must be vaccinated.

If an employee refuses, an employer must counsel the employee and take steps to reasonably accommodate the employee in a role that does not require vaccination.

However, if an employee presents a medical certificate referring to contra-indications and the employer accepts the certificate, or obtains a second evaluation that confirms the medical certificate, that employee must be accommodated in a position that does not require vaccination, according to the legal discussion issued by Webber Wentzel.

The second potential problem is that an employee has the right to refuse to perform work that “reasonably appears to that employee or a health and safety representative to pose an imminent and serious risk of exposure to the virus”.

“Once notified of this refusal, the employer must endeavour to resolve the issue. If the issue cannot be resolved internally, an inspector must be notified.

“This right may be used irrespective of any other internal processes and an employee may not be threatened, intimidated, dismissed or otherwise prejudiced for invoking this right,” say Collier, Bux and Atkinson in their review of the new regulations.

They add that disputes about this will be dealt with by the Commission for Conciliation, Mediation and Arbitration (CCMA).