Code of Practice: Managing exposure to COVID-19 in the workplace

The Minister of Employment and Labour has published the Code of Practice: Managing Exposure to COVID-19 in the Workplace, 2022 (Code). This Code will apply after the national state of disaster has lapsed and will continue to place responsibilities on employers to limit the exposure and mitigate the risks of infection by COVID-19 after the national state of disaster lapses. Until such time as the national state of disaster expires employers must continue to follow the Regulations and the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive). 

Risk assessment and plan

In terms of the Code every employer must undertake a risk assessment to give effect to its obligations under the Occupational Health and Safety Act, 1993 (OHSA) and the Regulations for Hazardous Biological Agents promulgated in terms of section 43 of the OHSA (HBA Regulations). On the basis of the risk assessment the employer must then either 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 the identification of employees to be vaccinated;
• the reporting of symptoms by employees and isolation of employees who are diagnosed with COVID-19 and are symptomatic;
• any other protective measures including but not limited to personal protective equipment and ventilation (in this regard, every employer must check regularly on the websites of the National Department of Health (NDOH), National Institute of Communicable Diseases and the National Institute for Occupational Health whether any specialised personal protective equipment for COVID-19 is required or recommended in any guidelines, having regard to the nature of the workplace or the nature of a worker's duties and the associated level of risk);
• a procedure to resolve any issue that may arise in respect of an employee related to the right to refuse to work in certain circumstances; and
• the process by which the obligations under the Code will be complied with.

The risk assessment and plan may also include social distancing measures, personal hygiene measures and any special measures to mitigate the risk of infection or serious illness or death.  

Notification of workers

An employer must notify workers on its premises of the contents of the Code, the employer’s plan and the manner in which it intends to implement it. Employers should also provide employees with information that raises awareness of COVID-19.

Symptom reporting by workers

In terms of the Code, every employer must take measures:

• to determine the vaccination status of their workers; and
• to require workers to immediately inform their employer if they experience any of the symptoms associated with COVID-19.

If an employee informs their employer that they are experiencing COVID-19-related symptoms, the employer may require the employee to be tested for COVID-19 before permitting the employee to enter the workplace or report for work. However, this does not apply to workers who report the presence of COVID-19 symptoms between one to three days after vaccination.

Isolation of workers

Once the Code comes into effect, workers who have been diagnosed with COVID-19 and are symptomatic must:

• inform their employer; and
• isolate themselves for the period as recommended by the NDOH (currently seven days), unless a longer period is recommended by a medical practitioner.

Prior to the Code coming into effect, the isolation periods remain as per the Directive. In circumstances where an employee informs their employer that they are experiencing COVID-19-related symptoms, the employer’s duties under the Code remain similar to those currently provided for in the Directive. In this regard, the employer must:

• place the employee on paid sick leave in terms of section 22 of the Basic Conditions of Employment Act, 1997 (BCEA) or if the employee's sick leave entitlement is exhausted, make application for an illness benefit in terms of section 20 of the Unemployment Insurance Act, 2001;
• take steps to ensure that the employee is not discriminated against on grounds of having tested positive for COVID-19; and
• if there is evidence that the worker contracted COVID-19 arising out and in the course of employment, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA).

Ventilation

In terms of the Code every employer must keep the workplace well ventilated by natural or mechanical means to reduce the COVID-19 viral load and identify areas in the workplace that are usually occupied and poorly ventilated, and improve ventilation either through natural ventilation (including opening doors, windows and vents and where possible cross ventilation in preference to single-sided ventilation) and/or ventilation through the use of fans, air conditioners or mechanical ventilation. Where reasonably practicable, employers should have an effective mechanical ventilation system.

Vaccination of employees

Once the Code is in effect an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate. This is something that was not provided for under the Directive.

Every employer must notify those employees who have been identified as requiring vaccinations of the obligation to be vaccinated. The employee should also be counselled on the issues related to vaccines, be given administrative support to register and to access their COVID-19 vaccination certificates on the EVDS Portal and be given paid time off to be vaccinated. The employer should also permit the employee to consult a health and safety representative, a worker representative or a trade union official.

Should an employee suffer a vaccine adverse event that renders them unable to work, the employer must on receipt of a medical certificate, give the employee paid time off to recover if the employee is no longer entitled to paid sick leave in terms of the BCEA or any applicable collective agreement or lodge a claim for compensation in terms of the COIDA.

Similar requirements have been drafted into the Code as those set out in Annexure C of the Directive, that is, if an employee refuses to be vaccinated, the employer must:

• counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
• take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.

The Directive makes reference to employees refusing to be vaccinated on Constitutional or medical grounds while the Code does not make reference to the grounds of refusal to be vaccinated and simply provides that if an employee refuses to be vaccinated steps must be taken to reasonably accommodate the employee. This seems to be regardless of the reason for the refusal. However, the Code provides that if a medical certificate confirms that the employee has contra-indications for vaccination, the employer must accommodate the employee in a position that does not require the employee to be vaccinated.

In South Africa there have been some recent cases which have dealt with employees’ refusals to be vaccinated against COVID-19. In TM v Goldrush Group (2022) GAJB24054-21 (CCMA) it was found that a dismissal for incapacity on the basis that the employee refused to be vaccinated in accordance with the employer’s mandatory vaccination policy was substantively fair. In this case the employee could not work from home and was required to interact with site-owners and employees. There was no alternative position for her and it was found that her incapacity was permanent as she indicated that she had no intention of being vaccinated.

In Solidarity obo Members and Another v Ernest Lowe the employer’s admission policy provided that access into the workplace would only be granted where an employee either provided the employer with proof of vaccination or a negative COVID-19 test. The employees approached the Labour Court in order to have the admission policy declared unlawful, and alleged that by not allowing them onto the premises to tender their services the employer was in breach of their employment contracts. The Labour Court dismissed the application and found that there was no breach of the employment contract by the employer and that such policy was not unlawful.

In the CCMA case of GJ Kok v Ndaka Security and Services (2022) FSWK2448-21, an employee accused his employer of an unfair labour practice after he was suspended on the basis that he refused to be vaccinated or produce a weekly COVID-19 test. The CCMA upheld the employer’s decision to suspend the employee as the employee had refused the option of having a weekly COVID-19 test as an alternative to the vaccination.

Small businesses

The requirements in respect of small businesses are more limited under the Code. In this regard, the obligations on employers with 20 employees or less are as follows:

• undertake a risk assessment of the workplace and take any reasonably practicable measures to mitigate the risk of infection and transmission of the virus or the risk to employees of serious illness or death;
• comply with the requirements for employees to be vaccinated if measures in respect of the vaccination of its employees are introduced;
• if an employee has COVID-19 related symptoms:
• refuse to allow the employee to enter the workplace;
• comply with the provisions above related to the isolation of workers; and
• to the extent reasonably practicable, ventilate occupied closed spaces in the workplace.

Refusal to work

Much like under the Directive, in terms of the Code an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19 infection. An employee who has refused to perform work must, as soon as is reasonably practicable, notify the employer, either personally or through a health and safety representative, of the refusal and the reason for the refusal.

The obligations on an employer who has been notified of the refusal are the same as under the Directive. In this regard, the employer must:

• after consultation with the health and safety committee or, if there is no committee, a health and safety representative, endeavour to resolve any issue that may arise from the exercise of the right of refusal;
• if the matter cannot be resolved internally, notify an inspector of the issue within 24 hours and advise the employee and all other parties involved in resolving the issue that an inspector has been notified; and
• comply with any prohibition issued by an inspector in terms of section 30 of the OHSA.

No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work under the circumstances described above.

No deduction from employee’s remuneration

No employer may make any deduction from an employee's remuneration or require or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide or to do in terms of the Code.

Processing of Health information in terms of the Protection of Personal Information Act, 2013 (POPIA)

In terms of POPIA, requiring employees to disclose their medical history and vaccination history constitutes a category of special personal information, the processing of which generally requires the consent of the data subject unless it can be justified on the basis that it is necessary for the establishment, exercise or defence of a right or obligation in law. Employers would need to comply with all the conditions for lawful processing in terms of POPIA with respect to the personal information of its employees. There would need to be limitations on which persons have access to this information and such persons should be bound by appropriate confidentiality undertakings. There would also need to be appropriate security safeguards and processes in place for the secure collection, storage, use and disposal of employees’ personal information.

Please feel free to reach out to us should you have any queries in relation to the above.