Applicable to: Employers, Employees, Workers, and Self-employed Individuals
With the National State of Disaster officially ended at midnight, several new regulations have been put in place by the government. The Hazardous Biological Agents regulations must be read with the Code of practice: Managing exposure to SARS-COV-2 in the workplace, 2022.
Severe acute respiratory syndrome-2 (SARS CoV2) (COVID-19) is now listed as a Group 3 hazardous biological agent (HBA) in the Hazardous Biological Agents Regulations, 2022.
A Group 3 classification refers to a HBA that may cause severe human disease, which presents a serious hazard to exposed persons and which may present a risk of spreading to the community, but for which effective prophylaxis and treatment is available. In particular, in categorising COVID-19, the Regulations specify that a registered vaccine is available for use in South Africa and can, in terms of regulation 10(4)(g), be made available to control exposure to the HBA in the workplace, where reasonably practicable.
This amendment to the Regulations, will assist employers who have implemented vaccination requirements in the workplace (or who intend to do so) to justify their requirements of vaccination as a control measure. Please keep in mind, only a risk assessment can determine whether an employee or worker should be subjected to a mandatory vaccination policy, and not the employer’s personal beliefs or views.
It can further be relied upon as a means of demonstrating what would be considered ‘reasonably practicable’ for purposes of complying with an employer’s legal duty in terms of section 8 of the Occupational Health and Safety Act (OHSA) to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees.
The Regulations are applicable to every employer or self-employed person at a workplace where amongst other things, exposure to an HBA (i.e. COVID-19) may occur. Overall, the Regulations place a number of legal duties on the employer which include amongst other things the duty to:
provide information, training and instruction to its employees on the risks of the HBA and the precautions to be taken;
ensure that a risk assessment is conducted and documented by a competent person;
develop an action plan for the implementation of the recommendations identified in the risk assessment and to inform all employees, the relevant health and safety representative and health and safety committee of the results of the risk assessment, and invite comments on such results;
establish and maintain an exposure monitoring program;
establish and maintain a documented system of medical surveillance that is overseen by an occupational health practitioner;
keep records, including the retention of a risk assessment for a minimum period of 40 years; and
prevent and control the exposure to the HBA in the workplace, which includes, where reasonably practicable, making available effective vaccines for those employees who are not immune to the biological agent to which they are exposed or could be exposed.
An Employer who contravenes or fails to comply with these obligations, will be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months as per the Occupational Health and Safety Act.
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