The Department of Employment and Labour has listed SARS CoV2 (Covid-19) as a group 3 hazardous biological agent (HBA) under South Africa’s Hazardous Biological Agents regulations, which has important implications for employers and businesses in South Africa, say experts at legal firm Bowmans.
The regulations were published by the department on 16 March 2022 in terms of section 43 of the Occupational Health and Safety Act (OHSA) and categorise HBAs into four risk groups according to their hazard and categories of contaminant.
They also require employers to control the exposure to HBAs in the workplace via various reasonably practicable measures.
Covid-19 is recognised as a Group 3 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 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 is a welcome amendment to the regulations, as it 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,” said Bowmans.
“It can further be relied on 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 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 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.
Any person 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.
Commentary by Melissa Cogger and Talita Laubscher of legal firm Bowmans.