Minister issues Code of Practice to manage Covid-19 in the workplace

16 March 2022,  Tata Mokwayi 553
On the 15th of March 2022, the Minister of Employment and Labour, Thulas Nxesi, issued a Code of Practice to manage the exposure to SARS-CoV-2, also known as Covid-19 in the workplace. The code shall take effect on the date of the lapsing of the Declaration of a National State of Disaster declared under GN313 of 15 March 2020, and extended in terms of section 27(2) of the Disaster Management Act, 2002 (Act No.57 of 2002). 

Covid-19 is a “moving target” and has undergone numerous changes over time, resulting in several variants emerging. Some of these that are likely to cause severe disease, are referred to as “variants of concern” and include the Beta-, Delta- and Omicron-variants. 

The Regulations for Hazardous Biological Agents, 2022 (HBA Regulations) list Covid-19 as a listed hazardous biological agent, classed as Group 3. The HBA Regulations place legal responsibilities on employers to limit the exposure and mitigate the risks of infection.  The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) (OHSA), read with its regulations and incorporated standards, requires the employer to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers, and to take reasonably practicable steps to limit or mitigate the hazard or potential hazard.

The OHSA further requires employers to ensure, as far as is reasonably practicable, that all persons who may be directly affected due to their activity (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety. This obligation also applies to self-employed persons (for example, plumbers or electricians) whose working activities bring them into contact with members of the public. 

Among others, the purpose of the Code is to guide employers and employees in managing exposure to Covid-19 in the workplace by, among others, providing guidance to employers and employees in conducting or updating a risk assessment in terms of the OHSA and the HBA in respect of the exposure to Covid-19; developing a plan to limit infection, transmission and mitigate the risks of serious illness or death on the basis of that risk assessment; implementing the plan; managing absence from work due to infection, isolation and adverse effects of vaccination; and seeking to accommodate employees who refuse or fail to vaccinate against Covid-19. 

The Code further aims to require any person interpreting an employment law to take it into account in respect of any matter arising from its application. This includes employees, trade unions, employers, employers’ organisations, inspectors, conciliators, arbitrators and judges. This is quite a significant development from the government as the debates around mandatory vaccinations within the workplace have continued and a number of cases are now reaching the CCMA and the Courts. To the extent that the Code advances an interpretation of the law, that interpretation is the policy of the Minister and the Department and should be applied unless that interpretation is reversed by a decision of the courts. 

The Code is intentionally general because workplaces and their requirements differ. Accordingly, departures from the non-obligatory provisions of this Code may be justified in appropriate circumstances. Any employer or employee who departs from them must demonstrate justifiable reasons for doing so. 

The Code directs every employer to among others, undertake a risk assessment to give effect to its obligations under the OHSA and the HBA Regulations; on the basis of the risk assessment develop or amend its existing plan to include any measures to be implemented in respect of the vaccination of its employees and, taking into account the intervals between vaccinations, the dates by which the employees must be fully vaccinated; and any other protective measures contemplated. 

Every employer is required to consult on the risk assessment and plan with any representative trade union and any health and safety committee established in terms of the OHSA or, in the absence of such a committee, a health and safety representative designated in terms of the OHSA or employee representative and make that risk assessment and plan available for inspection by the trade
Union, committee and an inspector. 

We will soon share more informaton on this Code of Practice with you.

In the meantime, do not hesitate to get in touch should you have any questions or concerns, or if we can assist in interpreting and applying the Code.

You can also download the Code of Practice below.

Code of Good Practice.pdf
Related Expertise: Labour and Employment

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