The national state of disaster, with its various “alert levels” which South Africans have grown accustomed to over the last two years, has had a significant impact on businesses and the way employers are required to staff and manage their workplaces.
While many industries are waiting with bated breath for the end of the national state of disaster – now extended to 15 April 2022 – they need to pay careful attention to the new Code of Practice issued by the Minister of Employment and Labour which will come into force upon the expiry of the national state of disaster.
The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) (OHSA), read with its regulations and incorporated standards, requires employers to provide and maintain a safe working environment for workers, and to take practical steps to limit or mitigate hazards or potential hazards to which employees may be exposed.
OHSA further requires employers to ensure, as far as possible, that anyone who may be directly affected by their activities is not exposed to hazards to their health or safety. This also applies to self-employed persons like plumbers or electricians whose working activities bring them into contact with members of the public. The Code of Practice applies to any premises of an employer where a person performs work, excluding mines, mining areas or works.
The identifiable hazard relating to Covid-19 is the risk of the virus infecting a worker, the virus transmission by an infected person to other workers in the workplace, and the risk of serious illness or death if infected. In the workplace to which the public has access, the hazard includes transmission of the virus by members of the public. Each situation requires special measures to be implemented in order to prevent infection and transmission of the virus or mitigate the risk of serious illness or death.
The Code of Practice requires employers to undertake a risk assessment to give effect to its obligations under OHSA and to develop or amend its existing Covid-19 management plan to include any measures to be implemented in respect of the vaccination of its employees. Employers are required to notify workers on its premises of the contents of the Code of Practice, its Covid-19 management plan, and the manner in which the employer intends to implement it. Section 15 of the Code of Practice provides that every worker is obliged to comply with the employer’s Covid-19 management plan.
The Code of Practice may enable employers to implement a Covid-19 management plan that incorporates the vaccination of its workforce, and employees are obliged to comply with the plan.
The Code of Practice obliges every employer to, amongst other things, notify employees of the obligation to be vaccinated if this is part of their management plan. An employer may also require their employees to disclose their vaccination status and to produce a vaccination certificate. If an employee refuses to be vaccinated, the employer must counsel the employee and take steps to reasonably accommodate the employee in a position that does not require them to be vaccinated.
Whilst the lapsing of the national state of disaster with its associated “alert levels” may be imminent, the impact of Covid-19 in the workplace will continue to be felt by employers and employees alike, for the foreseeable future.
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