With the National State of Disaster lifted, Employers, Employees, Workers, and Self-employed individuals will need to adhere to the recently published Code of Practice: Managing Exposure to SARS-COV-2 (COVID-19) in the Workplace, 2022.
The purpose of the Code is to guide employers and employees in managing exposure to SARS-COV-2 in the workplace by providing guidance to employers and employees in –
Conducting or updating a risk assessment in terms of the Occupational health and Safety Act and the Hazardous Biological Agents regulations in respect of SARS-COV-2 (COVID-19) exposure;
Developing a plan to limit infection, transmission and mitigate the risks of serious illness or death on the basis of that risk assessment;
Implementing the plan;
Managing absence from work due to infection, isolation and adverse effects of vaccination;
Seeking to accommodate employees who refuse or fail to vaccinate against SARS-COV-2.
Important notable definitions:
“reasonable accommodation” means any modification or adjustment to a job or to the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act, 1999 (Act 97 of 1999).
“vaccinated’ means fully vaccinated with vaccines and includes an additional dose or booster and “vaccination” has the same meaning.
“worker” means any person who works in an employer’s workplace including an employee of the employer or contractor, a self-employed person or volunteer”.
“workplace” means any premises of an employer or place where a person performs work.
The Code of practice requires of all employers to –
Conduct a risk assessment (at least every 2 years or when circumstance change and require this to be revisited, whichever is sooner);
Develop a “plan”, implement the “plan” and monitor and evaluate it;
Decide on vaccination and other protective measures;
Consult with representative unions / Occupational Health & Safety committees;
Make the “plan” available to stakeholders;
Administer the end-to-end process and keep records (in alignment with POPI) and retain them for 40 years.
The “plan” envisaged is a detailed and integrated COVID-19 Workplace Management Framework that addresses all the components covered in the compliance documents, including –
Scope and application (employees, workers, third-parties, workplaces, and work from home where applicable);
Definitions (including definition of vaccinated)’
The capacitation of employees and stakeholders;
The risk assessment;
Implementation, monitoring and evaluation protocols;
The vaccination and other protective measures (PPE, ventilation, social distancing, personal hygiene and other special measures to mitigate the risk of infection or serious illness or death in respect of individual employees at increased risk such as reducing the number of employees at the workplace);
Administrative, record-keeping and reporting protocols (including symptom reporting and isolation);
Systems of data collection, processing, transmission and retention / destruction (i.e. comorbidities, vaccination status, risk assessments, refusals to vaccinate, exposure monitoring, medical surveillance); and
Dispute resolution processes.
Administrative measures:
An employer must notify workers on its premises of the contents of this Code and its plan as outlined above and the manner in which it intends to implement it.
An employer must also provide workers with information that raises awareness in any form or manner, including, where reasonability practicable, leaflets and
notices placed in conspicuous places in the workplace informing workers of –
The dangers of the virus, manner of its transmission, measures to prevent infection or limit transmission such as personal hygiene, social distancing, use of facecloth masks and cough etiquette (every workplace should have this in place already and such notices need to be maintained and observed);
The symptoms associated with COVID-19;
The nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccination and the nature and risk of any serious side effects (every workplace should have this in place already and such communication need to be done on a regular basis to encourage vaccination and getting booster shot(s)).
Symptom reporting by workers:
Every employer must take measures –
To determine the vaccination status of their workers;
To require workers to immediately inform their employer if they experience symptoms associated with COVID-19.
If any employee informs their employer that they experience 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. Employees who report symptoms associated with COVID-19 one to three days after receiving a vaccine need not be referred for testing and should be permitted to return to the workplace and report for work.
Isolation of workers:
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 Department of Health, (currently 7 days), unless a longer period is recommended by a medical practitioner.
The employee must be placed on paid sick leave or if the employee’s sick leave entitlement is exhausted, make an application for an illness benefit through the Unemployment Insurance Fund. The employer must take steps to ensure that the employee is not discriminated against on grounds of having tested positive for SARS-COV-2 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.
All employers and employees need to be registered and contribute to the Sick Pay Fund of the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty, UIF and COIDA. These are statutory obligations on both the employer and employee.
Ventilation:
Every employer must –
Keep the workplace well ventilated by natural or mechanical means to reduce the SARS-COV-2 viral load;
Identify arears in the workplace that are usually occupied and poorly ventilated, and improve ventilation.
Specific personal protective equipment:
Every employer must check regularly on the websites of the National Department of Health, National Institute of Communicable Diseases and the National Institute for Occupational Health weather any specialised PPE for COVID-19 is required or recommended in any guidance based on the nature of the workplace or the nature of a worker’s duties and associated levels of risk. This includes ensuring that employers and workers maintain and uphold the Personal Care Sector-specific Protocols published by the Minister of Small Business Development, 19 June 2020.
Vaccination of employees:
Every employer must in accordance with the measures contemplated in its risk
assessment –
Notify the employee identified in terms of the risk assessment and the plan in place to mitigate the risk of COVID-19 in the workplace of the obligation to be vaccinated;
Council the employee on the issues related to vaccines;
Permit the employee, at the employee’s request, to consult a health and safety representative, a worker representative or a trade union official;
Give administrative support to the employees to register and to access their COVID-19 vaccination certificates on the EVDS Portal for SARS-COV-2; and
Give the employee paid time off to be vaccinated and provide transport for the employee to and from the nearest vaccination site. An employee who gets vaccinated may claim paid time off from the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Sick Pay Fund.
An employer may require its employees to disclose their vaccination status and to produce a vaccination certificate.
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, covered by the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Sick Pay Fund. Should the employee have exhausted its sick leave entitlement, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COVID-19 Vaccine Injury No-Fault Compensation Scheme).
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.
If an employee produces a medical certificate attesting that an employee has contraindications for vaccination, the employer may refer the employee for a medical evaluation for confirmation at the employer’s expense.
If the employer accepts the medical certificate or the employee is referred to medical evaluation and the evaluation 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. Should such an alternative position not be available and the risk assessment confirms the employee to be at high risk, the employer may request a negative PCR test every 72 hours at the expense of the employee, or the employer and employee may embark on an incapacity process.
Worker obligations:
In addition to the obligations of employee under the Occupational Health and Safety Act and the Hazardous Biological Agents Regulations, every worker is obligated to comply with the employer’s plan as referred to above.
Refusal to work:
An employee may refuse to perform any work if circumstance 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 SARS-COV-2 virus infection.
An employee who refused to perform work, as soon as is reasonably practicable, notify the employer, either personally through a health and safety representative, of the refusal and the reason for the refusal.
Every employer that has been notified of the refusal to work by an employee 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 to refuse to work.
If the matter cannot be resolved internally, notify an inspector from the Department of Employment and Labour 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 the Occupational Health and Safety Act.
No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work as contemplated 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 obligated to provide or to do in terms of the Code.
Monitoring and enforcing this Code:
The compliance and contravention of this Code may be monitored and enforced by local authorities appointed by the Minister of Employment and Labour and or inspectors of the Department of Employment and Labour. Any person found to be non-compliant and in contravention of this Code may be liable to a fine or
imprisonment.
Every workplace plan to manage exposure to SARS-COV-2 in the workplace should provide for the following:
A risk assessment;
A COVID-19 Compliance Officer;
A screening questionnaire;
An inspection list;
A vulnerable employee disclosure form;
A vaccination status questionnaire;
A vaccination policy (voluntary/mandatory/combination);
A vaccination objection form;
Worker awareness collateral;
Remote work protocols if applicable.
Click below to read the full government gazette PDF.
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