18 Mar 2022

Code of Good Practice: Managing exposure to Covid 19 in the workplace

by Michael Maeso, Partner, Durban,
Practice Area(s): Employment |

On the 15th March 2022, the Minister of Employment and Labour published the Code of Good Practice.  Once the declaration of the National State of Disaster expires, (currently extended to the 15th April 2022 amidst resistance from scientists who believe there is no basis to extend), the regulations and directions issued under the Disaster Management Act will cease to have legal effect.
It remains necessary to incorporate regulations which will prevent and mitigate risks associated with Covid 19 and the exposure in the workplace and it is with this in mind that the Code of Practice was gazetted.  There is nothing unusual by introducing Codes of Good Practice. Examples are in respect of dismissals and sexual harassment.
The Occupational Health and Safety Act requires employers in as far as is reasonably practicable, that all persons affected by their activities which includes employees and customers, are not exposed to hazards to their health and safety. This law has been in existence for a very long time.
The Code does not suggest a one size fits all remedy and emphasizes that each situation may require special measures to be implemented by employers to prevent infection and transmission of the virus or mitigate the risk of serious illness or death. The Code confirms the primary obligation to conduct and revisit a risk assessment to determine the risk of exposure and the control measures required to limit infection, transmission and mitigate the risk of serious illness or death on part of employees. The risk assessment must seek to accommodate employees who refuse or fail to vaccinate against the virus (this is important as the suggestion is that the primary remedy in the risk assessment is with the view to vaccinate, although this is not expressly set out) .
The Code requires judges, arbitrators, employees and trade unions to take it into account when interpreting employment law.  To the extent that the Code advances an interpretation of the law, this interpretation stands until such time as it is set aside by court. This is quite a bold statement and is different from other Codes that emphasize that they are guidelines.
Importantly, the definitions make no reference to “employees” but rather to “worker”.  This will attach a wider meaning than normally applied in other employment legislation.
The risk assessment may include (this means it is not preemptory and will turn on the facts):-
  • Social distancing measures, minimizing number of workers in the workplace;
  • PPE measures;
  • Personal hygiene measures including masks, sanitizing etc.; and
  • Any special measures to mitigate risk in respect of individual employees at increased risk.
The Code deals with measures to be taken if an employee tests positive and who experience symptoms.  These workers are required to isolate themselves for a period as recommended by the National Department of Health. No set time period is given.
Employers are required to place employees on paid sick leave for the period of isolation.  If employee’s sick leave is exhausted, application must be made for an illness benefit in terms of Section 20 of the UIF. This will only apply to employees in the traditional sense and not workers as defined.
If there is evidence that the worker contracted Covid during the course of employment, a claim for compensation in terms COIDA can be made.
Clause 12 of the Code deals with the vaccination of employees. The Code confirms that those employees identified in the risk assessment that require to be vaccinated must be notified and if necessary, counsel the employee on the issues related to vaccines. It is not spelt out, but these will likely include employees that work in areas that are exposed to the general public – retail stores etc. and possibly restaurants etc. it may even include employees that present with comorbidities that place them at high risk of infection and severe consequences of infection. There may also be inherent requirements of the job that require vaccination e.g., the need to travel internationally and particularly to those countries that require proof of vaccination before entry.  For these reasons, employees may be required to disclose the vaccination status.
If the employee refuses to be vaccinated, then the employer must counsel the employee, allow the employee to seek guidance from Health and Safety representatives and then to take steps to reasonably accommodate the employee in the position that does not require the employee to be vaccinated. Reasonable accommodation is defined and incorporates the Code of Good Practice : Employment of People with Disabilities contained in the Employment Equity Act.
If the employee produces a medical certificate showing contra-indications for vaccination, and if a second opinion confirms the contra-indications, the employer must accommodate the employee in a position that does not require the employee to be vaccinated. (This is a significant departure from previous regulations. The word must, is preemptory and no provision is made for circumstances if the employer is simply unable to accommodate the employee.  It is assumed that on this basis, the employer can still dismiss on grounds of incapacity as this is how medical incapacity is dealt with in the past,  however this remains open to interpretation, and it will be interesting to see how the courts will interpret this).
It is interesting to note that refusal to be vaccinated on constitutional grounds is not specifically mentioned and must be covered by the general provision dealing with refusal to be vaccinated. Here the employer must take steps to reasonably accommodate the employee. This is a lower hurdle than “must accommodate” as required by those refusing on medical grounds. 
An employee may refuse to perform any work if there is reasonable justification to show that the work poses an imminent and serious risk of exposure to Covid.
Once this report is made to a Health and Safety representative, then employer is obliged to consult and if the matter cannot be resolved, an inspector from the Department of Employment and Labour must be notified and if that inspector issues a prohibition order, that order must be complied with.
The Code is silent on what happens before an inspector intervenes and it is assumed that the employee is not expected to perform the duties until the issue is resolved.  It remains to be seen whether this interim period is on no work no pay but it may present significant disruption to employers suddenly faced with a number of objections until a determination is made on whether the objection is reasonable or not.