President Cyril Ramaphosa’s decision to lift the national state disaster means almost all of the country’s lockdown rules have been repealed with immediate effect.
However, there is still a complex landscape of rules and regulations for employers to navigate, say employment law experts at Cliffe Dekker Hofmeyr.
The firm said that the most notable transitionary provisions in the employment context are as follows:
- The wearing of face masks is mandatory when in an indoor public space (which includes the workplace) for all persons above the age of six;
- No person, above the age of six years of age, shall be permitted to use public transport or enter or occupy any building or premises used by the public to obtain goods and services without wearing a face mask;
- Face masks are not mandatory in open public spaces however social distancing of at least 1 meter must be maintained;
- No employer may allow any employee to perform their duties or to enter the employment premises if the employee is not wearing a face mask while performing their duties;
- Gatherings at a workplace for work purposes are permitted subject to strict adherence to all health protocols and social distancing measures;
- Only the 21 land borders which were operational in terms of the last alert level 1 will remain open during the transitionary period;
- International air travel is limited to the following airports; O.R Tambo International Airport, King Shaka International Airport, Cape Town International Airport, Lanseria International Airport, and Kruger Mpumalanga International Airport;
- Travel to and from South Africa is permitted subject to persons producing a valid vaccination certificate or a negative Covid-19 test recognised by the World Health Organisation which is no older than 72 hours.
Some rules fall away, some take effect
In addition – and importantly for employers who have or are considering implementing a mandatory vaccination scheme – with effect from 4 April 2022, directions pertaining to the scheme were promulgated, Cliffe Dekker Hofmeyr said.
These directions relate to the administration of the scheme, the vaccines applicable to the scheme, the eligibility of claims and the process by which a person may lodge a claim with the scheme.
“Furthermore, it is important for employers to note that the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces published on 11 June 2021, which were the authority on workplace health and safety under the state of national disaster, no longer remain in force,” the firm said.
“The Code of Good Practice: Managing exposure to SARS-COV-2 in the Workplace published by the Department of Employment and Labour on 15 March 2022 is now in effect.”
The code is intended to guide employers on the manner in which to fulfil their obligations to keep the workplace safe following the end of the national state of disaster, which includes an obligation to limit and mitigate the risk of Covid-19, the firm said.
The Code of Practice
Among other things, the Covid Code reiterates an employer’s right to implement a vaccine mandate and clarifies the grounds on which employees can refuse the vaccine, say experts at legal firm Baker McKenzie.
The Covid Code creates a legal framework for managing the pandemic and its impact on the workplace. The rules now make specific provisions for employers to ascertain their employees’ vaccination status.
Employers will no longer be required to screen employees daily for Covid-19 symptoms or report such information. Employees will only be obliged to inform employers when they have Covid-19 symptoms. Employers will be entitled to request a negative Covid-19 test to allow the employee to return to the office.
According to the new rules, employees no longer have to limit their refusal to vaccinate on constitutional or medical grounds. Where employees base their refusal on a contraindication to the vaccine, the employee must produce a medical certificate confirming this.
The employer may then request that the employee be medically assessed to confirm their medical status, which the employer must pay for. Employers must reasonably accommodate employees who refuse vaccination.
In recent cases at the CCMA, the employment tribunal has upheld numerous employers’ decisions to dismiss or suspend employees who refused to get vaccinated or take regular tests.
Taking into consideration the Covid Code, the updated regulations and a recent decision by the labour court, employers could implement an admission policy, which would require employees to present either a vaccination certificate or a negative Covid test (at the employees’ expense) in order to enter the office.