New Covid rules for workplaces in South Africa – and what it means for masks

At the end of June, Employment and Labour minister Thulas Nxesi published the Code of Practice: Managing Exposure to SARS-CoV-2 in the workplace.

The new code effectively replaces the old code dealing with similar issues published on 15 March 2022.

“While the old and the new code are not substantially different, employers and employees should note the following provisions contained in the new code when developing a risk assessment and plan in the workplace in terms of the new Code and the Occupational Health and Safety Act (OHSA),” says legal firm Werksmans.

  • The risk assessment must make provision for the adoption of special measures to mitigate the risk of infection or serious illness or death arising from Covid‑19. These measures include the vaccination of employees and/or the wearing of Personal Protective Equipment (PPE) such as masks in the workplace.
  • This plan must be based on the employer’s workplace requirements and the outcome of the risk assessment. Should an employer conclude a plan contemplated by the code and decide that its safety requirements are, inter alia, that its employees must be vaccinated or wear facecloth masks in the workplace, such employees will be obliged to follow these requirements.

“Although it is no legal requirement for employees to wear masks in order to enter an employer’s premises, Covid‑19 is still categorised as a Group 3 hazardous biological agent under Hazardous Biological Agents Regulations and employers still have an obligation to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of workers,” Werksmans said.

“In view of these factors, an employer may still require its employees and third parties, such as customers and clients, to wear masks or other PPE specific to Covid‑19 if these safety requirements are deemed necessary in terms of the employer’s risk assessment and plan.”

In the final analysis, the new code is essentially not materially different to the old code and is not couched in prescriptive terms, the firm said

“This, in our view, allows employers to apply the new code in accordance with their particular safety requirements. This view finds support in clause 2(4) of the new code which provides that the Code is intentionally general because workplaces and their requirements differ. Accordingly, departures from the non-obligatory provisions of this code may be justified in appropriate circumstances.”

Commentary by Anastasia Vatalidis; Sandile Tom and Benedict Ngobeni of Werksmans.

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New Covid rules for workplaces in South Africa – and what it means for masks