How new COVID regulations impact employers

May 19, 2022 10:31:57 AM

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By Jessie Taylor

COVID-19 cases have seen a resurgence across the country, with Gauteng, KwaZulu-Natal and Western Cape all recording higher numbers. The increase in cases comes as the South African government works to finalise regulations to replace the National State of Disaster.

While a number of rules remain in place, the lifting of the State of Disaster has brought some changes to how COVID-19 is managed in the workplace.

Beyond the State of Disaster

President Cyril Ramaphosa said the introduction of the State of Disaster and associated lockdown restrictions had been essential tools in managing the pandemic and had allowed for the establishment of social relief schemes and other necessary regulations.

The State of Disaster and its powers were always intended to be temporary and limited, and once the number of hospitalisation and deaths had reduced, the regulations were lifted in favour of new legislation to be promulgated under the National Health Act.

The State of Disaster was lifted on 5 April, with the regulations left in place for 30 days to allow the National Health Department to submit alternative regulations under the National Health Act, which would manage any future COVID-19 restrictions.

In a recent media briefing, Health Minister Dr. Joe Phaahla said more than 300 000 comments were received on the department’s proposed regulations. These are being addressed and will be processed for adoption in May.

Some of the regulations that have been dropped in the scrapping of the National State of Disaster include workplace specific rules.

In the workplace, masks are still mandatory in all indoor spaces for anyone older than six years. This is also applicable to any forms of mass transport supplied to employees, as no public transport may be used without a mask.

Employers are obliged to enforce this rule among employees on their premises. Gatherings for work purposes must adhere to all health protocols and social distancing measures.

In addition, directions around mandatory vaccination schemes have been promulgated.

These directions cover the administration of the scheme, the vaccines applicable to the scheme, the eligibility of claims and the process by which a person may lodge a claim with the scheme.

The Code of Good Practice: Managing exposure to SARS-COV-2 in the Workplace, published by the Department of Employment and Labour in March, has also now come into effect.

This code is intended to guide employers on how to fulfil their obligations to keep the workplace safe after the end of the National State of Disaster, including limiting and mitigating the risk of COVID-19.

The COVID Code gives employers the right to implement a vaccine mandate and ascertain their employees’ vaccination status. It also maps out the grounds on which employees can refuse the vaccine.

A continued need for protection

There have been other changes that employers need to be aware of. With the ending of the State of Disaster, employers are no longer obligated to screen employees on a daily basis for COVID-19 symptoms.

Employees will only be obliged to inform employers when they have COVID-19 symptoms, and employers are entitled to request a negative COVID-19 test to allow the employee to return to the office after they have been diagnosed as positive.

The new rules also mean that employees no longer have to limit their refusal to vaccinate on Constitutional or medical grounds. Should an employee base their refusal to vaccinate on a contraindication to the vaccine, they are obliged to produce a medical certificate as confirmation. Their employer may also request that the employee be medically assessed to confirm this and will be obliged to cover the cost.

However, under the COVID Code, employers could implement an admission policy that would require employees to produce a vaccination certificate or a negative COVID test at their own expense to enter their office.

“There continues to be a need for all of us to protect ourselves through the nonpharmaceutical means and through vaccine (sic) as the only weapon against COVID. He assured the parliamentarians and the public at large that the government continues to have good intentions in the execution of its Constitutional mandate to protect the lives of South Africans, and the introduction of the amendments to the existing Health Regulations is to ensure this is done logically and rationale,” says Minister Phaahla.

Broadly, the new regulations include provisions for compulsory medical examinations, screening, vaccination and quarantine, among others. Minster Phaahla has said the new regulations would be based on legislation from 2017 that deals with the surveillance and control of notifiable health conditions.

“These health regulations are not new; they were promulgated in 2017. However, [they] do not make provisions for the management of the notifiable medical conditions of COVID-19 pandemic magnitude, which has never been experienced before,” says Minister Phaahla.

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