As the country enters the third wave of Covid-19 and vaccinations are being dispensed slowly, we need to relook at the behaviour in the workplace.
The presidential message, on June 15, was that South Africa’s positivity rate was at 18.5%. There was a call for South Africans to continue wearing masks, wash their hands and sanitise frequently. Another plea was for people to practise physical distancing and avoid large gatherings.
The Minister of Employment and Labour has gazetted a consolidated Direction on Occupational Health and Safety Measures in certain workplaces. The regulations came into effect on June 11 this year.
It should be noted that “vulnerable employees” means any employees with known or disclosed health issues or comorbidities, or any other condition that could place the employee at a higher risk of complications or death than other employees if infected with Covid-19.
Likewise, any employee above the age of 60, who is at a higher risk of severe Covid-19 disease or death if infected, could be deemed to be vulnerable. A worker means any person who works in an employer’s workplace, including an employee of the employer or contractor or self-employed person or volunteer. The workplace means any premises or place where the person performs work.
The directions apply for the duration of the national state of disaster, unless otherwise indicated.
Every employer must undertake a risk assessment to give effect to the minimum measures required by the directions, taking into account the specific circumstances of the workplace and the requirements of the occupational health and safety regulations.
Within 21 days of the coming into force of the amendment to this direction, the employer must make it clear whether it intends to make vaccinations mandatory and, if so, to identify employees who, by the risk of transmission through their work or their risk for severe Covid 19 disease or death due to their age or comorbidities, must be vaccinated. In essence, certain workplaces will make vaccinations mandatory in certain circumstances.
There will be risk assessments and the employer must develop a plan or amend its plan in line with the new regulations. The plan must outline the protective measures in place for the phased return of its employees. It is mandatory to consult on the risk assessment and plan with any representative trade union and any health and safety committee established under the Occupational Health and Safety Act (OHSA).
The plan must be made available for inspection by an inspector. It will include a list of the employees permitted to return to work and those who are required to work from home. It will also identify vulnerable employees. There must be measures for daily screening of employees and clients.
There must be a procedure to resolve any issue that may arise from the exercise. It should be noted that small businesses, that is employers with 10 employees or less, are exempt from some of the regulations. Certain employees may refuse to perform any work if circumstances arise which, with reasonable justification, appear to the employee or to a health and safety representative to pose an imminent and a serious risk of their exposure to Covid-19.
The employee who has refused to perform work must, as soon as reasonably practicable, notify the employer, either personally or through a health and safety representative, of the refusal and the reason for the refusal.
Thereafter, every employer who has been notified must consult with the compliance officer and the health and safety committee. They must try to resolve the matter internally. If that is not possible, they need to 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.
If there is dispute about whether the employee has to return to work, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration, under terms of Section 191 of the Labour Relations Act. If the employer has complied with all the directions and the employee refuses to return to work, the employer might withhold salary and the employee is then obliged to declare the dispute.
The employer must take into account the rights of the employees to bodily integrity and the right of freedom of religion, belief and opinion. The rights are protected by the Constitution. The employee will raise any objection to taking the vaccination and this objection must be tested in terms of the rights of the employer and the employee.
If the employer employs more than 50 employees, the employer must submit a record of its risk assessment, together with its plan and policy, to the Health and Safety Committee. They must retain a copy of the risk assessment and make a copy available to health and safety representatives appointed under the OSHA and the inspectors of the department.
Interestingly, an employer must require employees to disclose whether they have any of the health issues, comorbidities or conditions contemplated in the definition of vulnerable employees and, thereafter, take special measures to mitigate the risk.
In essence, the employer must notify its employees that if they are sick or have symptoms associated with Covid 19, they must not come to work and must take paid sick leave under the Basic Conditions of Employment Act.
The employer will appoint a manager as a Covid-19 compliance officer to oversee the implementation of the plan. The manager, who is the compliance officer, will consult with workplace representatives, employees and the committee on the nature of any hazards at the workplace.
Businesses must provide workers with information that raises awareness in any form or manner.
Once again, if any worker has been diagnosed with Covid 19, the employer must inform the National Institute of Occupational Health in accordance with the National Department of Health guidelines.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected].
** The views expressed here are not necessarily those of Independent Media.
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