With the removal of the National State of Disaster, followed by the relaxation of the mask laws, what obligations remain in place for employers with respect to Covid-19? Luckily, we do have some guidance.
In February 2022, the Code of Good Practice on Managing Exposure to Covid in the Workplace was gazetted under the authority of the Labour Relations Act. However, there was subsequently a challenge to this, whereby it was alleged that this Code was gazetted unlawfully. As a result, a further Code of Good Practice was gazetted at the end of June 2022. This second Code of Good Practice is identical to the first (down to the footnotes).
Despite that the second Code was gazetted essentially just to account for an error, it is certainly relevant that it remains unchanged. It can be assumed that the intention of the legislature was to reiterate the rights and obligations of employers in a post-non-mask wearing world.
Observations from The Code
Application of the Code
While ordinarily a Code promulgated under the Labour Relations Act would only apply to “employers” and “employees”, this Code seeks to broaden its application. The Code applies to “workers”, which are defined as employees, contractors, self-employed persons, or volunteers who perform work at the relevant employer’s workplace. This is likely to bring the Code in line with the terminology used under the Occupational Health and Safety Act.
Further to this, “workplace” is defined as any premises of the relevant employer, or a place where a person performs work. This would imply that remote working locations would be included as well.
Screening and Contact Tracing
We are sure that many businesses were thrilled to learn that these requirements are no longer mandatory. The Code provides a great deal more self-regulation to employers going forward. Therefore, screening and contact tracing are not a requirement, but rather employers can put in place their own measures in order to obtain similar information.
Employers are still responsible to ensure that workers with any Covid-related symptoms report these immediately. If this is not done at the time of entering the building by completing a screening, then the employer should put in place their own internal process to ensure symptoms are reported with urgency.
In addition, while an employer is not required to screen, employers retain their obligation under the Compensation for Occupational Injuries and Diseases Act. Meaning, an employer should have sufficient records in place where an employee contracts the Covid-19 virus as a result of his or her duties.
The Risk Assessment
Under the Code, every employer is required to undertake a risk assessment in order to analyse the risk or Covid-19 in the workplace. This is the risk of staff exposure to the virus, risk of transmission in the workplace, as well as possible severity of symptoms should someone contract the virus.
This risk assessment is required, regardless of whether an employer intends to implement a mandatory vaccination policy. A mandatory vaccination policy is merely one measure which an employer may implement if the risk assessment leads to the conclusion that vaccination is necessary. However, maintaining perspex partitions which have been erected, continuing to sanitise regularly, or requiring masks to still be worn, are all “measures” to mitigate risk. These measures should be in place as a result of the exercise of running the risk assessment.
The reason that a risk assessment is required is based on Covid-19 being classified as a Group 3 Hazardous Biological Agent under the Regulations for Hazardous Biological Agents, 2022. This classification places a legal obligation on employers to limit exposure to the virus and mitigate the risk of infection. It goes without saying that you cannot limit exposure or mitigate risk if the nature and extent of the risk is not understood first.
Many employers have been left wondering whether they can continue to implement their mandatory vaccination policy following the removal of all Covid laws. The Code continues to identify a mandatory vaccination policy as an option available to employers as a risk mitigation measure. As a result, mandatory vaccination policies, in principle, are still enforceable. We do just caution that a great deal of case law has emerged on the fairness of dismissal following a refusal to comply with a mandatory policy. If you are considering dismissal as an option, we suggest contacting our offices to ensure that you first comply with the required processes for a fair dismissal.
The Code also introduces an interesting and fairly onerous burden on employers where an employee has a legitimate medical basis for refusing vaccination. Where previously the requirement was to ascertain whether the employee could be reasonably accommodated, and if not, they could still be dismissed, this approach will now only be valid for non-medical objections. Where an employee presents medical proof that they would suffer a contra-indication as a result of the Covid-19 vaccination, and the employer accepts this proof, the employer must accommodate the employee. To be clear, an employer can require that the relevant employee undergoes a further medical evaluation at the employer’s cost before accepting that the employee has a legitimate medical basis on which to refuse vaccination. However, where the second opinion leads to the same conclusion, the employer will likely have to accept that this particular employee cannot be vaccinated. In such circumstances, the employer is faced with the task of ensuring there is another role for the employee which does not require vaccination.
While in some workplaces this might be an easy task to achieve, there are other workplaces where the task is relatively insurmountable – so much so that one is left wondering if the legislature could have possibly intended the consequences which realistically flow from an immovable word like “must”.
Let’s take a practical example that we have encountered. An employer is in the business of procuring and providing registered nursing staff for care homes for the elderly. The employer employs a small number of administrative staff to manage the business, and the vast majority of employees on the books are registered nurses. A registered nurse performs his or her duties by attending, in person, at a home for the elderly (where the residents are necessarily over the age of 65 and many have comorbidities). We then throw in the additional concern that the families of the elderly residents are uncomfortable with any nurses attending to their loved one if the nurse is unvaccinated. It would seem clear as day that this employer would be able to implement and easily enforce a mandatory vaccination policy.
However, the current wording of the Code suggests that if one of the registered nurses were to have a legitimate medical basis on which to refuse vaccination, then this employer must accommodate the employee in a position which does not require vaccination. Naturally, the question would be, but where could this employee be placed?
It seems an over-step that the Code would seek to usurp and employer’s entitlement to dismiss an employee for reasons of incapacity in such circumstances. Regardless, at present, this is the position we are faced with. It is also a position which has been confirmed to as the correct reading of the Code by a Senior Commissioner at the CCMA.
It should be apparent by now that we gain new information, and new precedents are set with respect to Covid-19 almost daily. There is a great deal of information to navigate, and we appreciate that it is daunting when the goal-posts constantly move. Covid-19 is certainly still with us, the law is just adapting in terms of how it is managed. Please reach out to us if you have any questions on the Code, or on managing Covid-19 in your workplace.