Employer - New rules say Covid-19 vaccines can be made mandatory
In mid-June, the South African Department of Employment and Labour (DoEL) issued an update on the occupational health and safety directive, allowing employers to implement a mandatory workplace vaccination policy, amongst others, which is subjected to certain guidelines.
There have been many debates over whether employers can or cannot force their employees to take the Covid-19 vaccine, and while the latest directive sheds light on this matter, it also ensures that employers are reminded to consider the rights that employees have with regards to bodily integrity and religious freedoms and beliefs.
Covid-19 - Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Updated)
Covid-19 -Risk Assessment and Plans for Protective Measures
Under this directive, Employers are obligated to ensure that they undertake a risk assessment which gives effect to the minimum measures as indicated in these Directions. This must include considering certain circumstances surrounding the workplace as well as requirements of OHSA Regulations for Hazardous Biological Agents.
Employers who wish to make the Covid-19 vaccination mandatory must, after 21 days of enforcement of the Direction, as according to Section 8 and 9 of OHSA, identify the employees who must be vaccinated, by virtue of the risk assessment are susceptible to Covid-19 disease or death as result of their age or comorbidities.
Employers are also required to develop a plan, or amend an existing plan, to ensure that the protective measures in place for the phased return of employees before opening is effective.
In addition, employers must ensure that the plan outlines the measures that they will implement with regards to the vaccination of employees as per the Direction, considering the Guidelines provided in Annexure C.
Employers must consult on the risk assessment and must, in accordance, make the necessary plans involving:
- Any representative union
- Any health and safety committee
Employers must also ensure that the plan is available for inspection by any inspector or any other relevant person.
The plan that employers must implement must consist of the following:
- The date on which the workplace will open, including the hours of opening and operation
- A list of employees who will be permitted to work on the premises and those who are required to work from home
- The plan as well as timetable for the phased-in return of employees to the workplace
- The identification of vulnerable employees for the purposes of this Direction
- The means of minimising the number of workers at the workplace at a single time
- The protective measures for the workplace which must be taken in terms of the Directions as well as any other sectoral guidelines to prepare the workplace
- Measures involving daily screening of employees as well as that of clients, contractors, and visitors to the premises and workplace
- The details pertaining to the Covid-19 compliance officer who is appointed in terms of these Directions
- A procedure which will resolve any possible or arising issues from the exercise by employees relating to the right to refuse work in the circumstances contemplated in the Direction.
In addition, the plan must also include the identification of vulnerable employees who are contemplated in the relevant sections, and the process involved with compliance of this Directive.
The plan must be subjected to collective agreement determining whether the employer will make vaccination mandatory for those employees identified, given that vaccinations have become available in respect of these employees as part of the government’s phased approach.
Lastly, it is imperative that employers consider the rights that employees have towards bodily integrity as well as the right to freedom of religion, belief, and opinion, as per Section 13 of the Constitution.
Covid-19 - Administrative Measures
It is crucial that employers establish several Covid-19 administrative measures to ensure that this Directive is followed. Where employers have employed 50 employees, and more, the employee is required to submit the risk assessment alongside their plan and policy.
This will include any amendments that have been made to the risk assessment in question along with the plan and policy, specifically where the health and safety of employees against Covid-19 is concerned.
Employers must ensure that they retain a copy of the risk assessment, plan, and policy, and that the copy is made available to health and safety representatives, who have been appointed according to OHSA, and any inspectors who request a copy.
The administrative measures that employers implement must disclose whether employees have any existing or potential health issues, comorbidities, or any other conditions which classify these employees as vulnerable.
This will require that special measures be taken to mitigate the risk of Covid-19 infection for these employees as per the Department of Health’s Guidelines in facilitating the safe return to work for these employees, or their working from home.
These administrative measures must also notify all workers of the Direction’s contents in addition to the plan and way in which the employer will implement it. This will also notify employees of the steps to be taken if they are sick or have symptoms of Covid-19.
Employees who are either sick or display Covid-19-related symptoms must not go to work and they must take paid sick leave in terms of section 22 of the BCEA. In addition, a manager must be appointed as Covid-19 compliance officer, who must perform the following duties:
- Oversee the implementation of the plan
- Oversee compliance with health and safety measures which were established in the workplace to give effect to the requirements of the Direction. This includes the appointment of employees to perform the function where the employer has more than one workplace
- Address any concerns from employees or workplace representatives
- Keep employees and/or workplace representatives informed
- Where a health and safety committee has been elected, consult with the committee on the nature of the hazard in the workplace along with the measures that must be taken.
The administrative measures taken by the employer must ensure that there is supervision and monitoring to ensure that there is compliance with the Direction, and, as far as practicable, it must minimise the number of employees at the workplace at any given time.
This can be ensured by implementing the rotation of staff, staggered working hours, shift systems, remote working arrangements, or any other similar measures which will achieve social distancing.
Administrative measures must ensure that contact between workers is minimised and that there is minimal contact between workers and the public. Workers must be provided with enough information to raise awareness of:
- The dangers of the virus
- How the virus is transmitted
- The measures to prevent transmission including personal hygiene, social distancing, the use of masks, cough etiquette, and where screening and testing for Covid-19 can be done if workers have Covid-19 related symptoms
- The nature of vaccines which have been issued in the country
- The benefits associated with Covid-19 vaccines along with their contraindications
- The nature and risk of serious side effects including severe allergic reactions
If an employee has been diagnosed with Covid-19, the employer must:
- Inform the National Institute for Occupational Health as per the guidelines of the National Department of Health
- Inform the Compensation Commissioner as per the Directive on Compensation for Workplace-acquired Novel Corona Virus Disease
- Investigate the mode of exposure including any control failure.
- Review the risk assessment to ensure that the necessary controls as well as PPE requirements remain in place.
- Determine the need for temporary closure of the affected workplace area so that decontamination can be done.
- Provide administrative support to contract-trace.
Employers are also required to provide their employees with the necessary administrative support to assist them in registering on the Electronic Vaccine Data System Registration Portal for Covid-19.
Lastly, employers are required to provide employees with paid time off so that they can be vaccinated, provided that the employee provides proof of vaccination which occurred during the hours that the employee would typically be at work.
If an employer decides that vaccination is mandatory for vulnerable employee identified, the vaccination plan must comply with the applicable and relevant collective agreements and consider the guidelines indicated in Annexure C of the Direction.
Employers who have 50 employees, and more, must also ensure that they submit the following categories of data to the National Institute for Occupational Health:
- Vulnerability status of employees for serious outcomes of Covid-19
- Details of Covid-19 screening for symptomatic employees
- Details of employees who tested positive for Covid-19
- The number of employees identified as high-risk contacts in the workplace
- Details pertaining to the post-infection outcomes of those who tested positive
Covid-19 and Social Distancing Measures
Each employer must ensure that there is effective measures in place to ensure minimal contact between workers. The safe distance between workers must be kept at a minimum of one and a half metres at their respective workstations.
Depending on the specific circumstances of the workplace and/or nature of the sector, the minimum distance can be greater. However, employers are advised to reduce the number of workers present in the workplace at any given time as it may assist in achieving the required social distancing.
Where and if it is not practicable to arrange workstations to comply with the minimum social distancing requirement, employers must arrange that there are physical barriers between workstations.
In addition, employers must supply employees with the appropriate PPE based on the risk assessment of the workplace, free of charge, to lower the chances of transmission.
Each employer must ensure that the social distancing measures are implemented and there is compliance by using supervision.
Covid-19 - Symptom Screening
Employers are required to ensure that the following measures are taken:
- Screen workers when they report for work to determine whether they have any Covid-19 related symptoms, and to determine whether they have any additional symptoms.
- Require that employees immediately report if they experience any symptoms relating to Covid-19.
Employers are obligated to comply with any guidelines which have been issued by the National Department of Health associated with symptom screening and testing, and medical surveillance and testing, where required.
If an employee has symptoms relating to Covid-19, or they advise the employer that they have such symptoms, the employer must:
- Prohibit the employee from entering the workplace or to report for work.
- If the employee is already at work:
- They must be provided with a surgical mask
- It must be arranged for the employee to be transported to a public health facility in such a manner that the employee is isolated from other workers and the public.
- The risk of transmission must be assessed, the area must be disinfected, and contract tracing must be done.
- The employee must be placed on paid sick leave.
- The necessary steps must be taken to ensure that the employee is not discriminated against.
- If there is proof that the employee contracted Covid-19 arising out and in the duration of employment, a claim for compensation must be filed in terms of COID, Act 130 of 1993.
If an employee has been diagnosed with Covid-19 and they have been isolated, the employer may only allow the employee to return to work without viral testing if the employee has completed the 10 days isolation either from when they started experiencing symptoms, or:
- in mild cases of infection
- in moderate to severe cases of infection from when the employee achieved clinical stability, or earlier, if the employee has undergone a medical evaluation which confirms their fitness to work.
An employer may also allow an employee to return to work if they can ensure that employees can ensure that personal hygiene, wearing of masks, social distancing, and cough etiquette can be adhered to.
Employees may also return to work if employers can effectively monitor the employees for any symptoms and, on return to work, the employee wears a surgical mask for 21 days after the date of diagnosis.
Where employees have been in contact with another employee who tested positive for Covid-19, the employer must ensure that the exposure of that employee is assessed. Where there is low-risk exposure, the employer may allow the employee to continue working but they must monitor the symptoms for 10 days after first contact.
Where there is high-risk exposure, there health worker must quarantine for 7 days, or with the agreement of the worker, 5 days, and all other employees must quarantine for 10 days, and the employer must place the affected worker on sick leave.
If the employee is asymptomatic, further testing may not be required prior to the employee returning to work, except where health workers return to work in less than 10 days.
If an employee is vaccinated against Covid-19 and they suffer side effects as result therefrom, and they cannot attend work, the employer must place the employee on sick leave.
Covid 19 - Sanitisers, Disinfectants, Hand Washing
As far as this Direction is concerned, hand sanitisers must contain at least 70% alcohol in accordance with the recommendations of the Department of Health. Surface disinfectants use must also be as per the recommendations of the Department of Health.
All employers must ensure that there is adequate quantities of hand sanitisers available free of charge. The quantities must be based on the number of employees in the workplace and the number of persons who access the workplace.
Every employee who works away from the workplace, other than at home, must be provided with an adequate supply of hand sanitiser.
If an employee interacts with the public, the employer is obligated to ensure that the employee has enough hand sanitiser at their workstation for both the employee and the person who they interact with.
All employers must ensure that:
- Work surfaces and equipment are disinfected prior to work, during the working day, and after the working day concludes.
- That all areas including lavatories, common areas, door handles, shared electronic equipment, and others, are cleaned frequently and effectively disinfected.
- That biometric systems are either disabled or they are guarded against the transmission of Covid-19.
- Adequate facilities are provided where employees can wash their hands with soap and clean water.
- That papers towels are the only material provided to dry hands after washing.
- That workers wash and sanitise their hands frequently while they are at work.
- That workers who interact with the public are instructed to sanitise their hands between each interaction
- That any surfaces subjected to contact by the public are frequently cleaned and sanitised.
Covid-19 - Cloth Masks
The benefit of a cloth mask is that it reduces the amount of virus containing droplets which are transmitted from those who have Covid-19 to others and to surfaces that they may touch.
It is mandatory for all persons to wear a cloth mask when in public places and therefore, all employers must ensure that their employees are provided with at least two cloth masks, free of charge.
These masks must comply with the Recommended Guidelines Fabric Face Masks and must be work while employees are at work and while they commute to and from the workplace.
The number and the replaceability of cloth masks will depend on the sectoral guideline and the conditions of work of employees. Employers must ensure that their employees are informed, trained, instructed, and supervised accordingly where the correct use of cloth masks is concerned.
Covid 19 - Measures where the Public has access to workplaces
This is to ensure that employees who may be exposed to the virus through interactions with the public are protected. It also protects the public from exposure through interaction with employees and other persons in such workplaces.
Depending on the nature of the workplace, each employer must ensure the following:
- That the floor area of the workplace is calculated to determine the number of customers and workers that may be inside the workplace at a single time.
- Arrange the workplace in such a way that there is at least one and a half metres distance between workers and the public as well as between members of the public.
- Implement physical barriers at counters and/or provide employees with face shields and visors.
- Ensure that symptom screening measures are taken of persons other than employees at the entrance of the workplace.
- Display relevant notices which advise all persons to wear masks when entering the premises.
- Take the necessary steps to ensure that customers who queue either in or outside the workplace can maintain the minimum social distance of one and a half metres.
- Provide hand sanitiser for use by the public at the entrance into the workplace
- Assign an employee as compliance officer to ensure that all these measures are followed.
Ventilation Requirements for Covid – 19
All employees must ensure that the workplace is well ventilated by either natural or mechanical means to recue the viral load of Covid-19. Where possible, employers are urged to install effective local extraction ventilation systems that have High-Efficiency Particulate Air filters.
In addition, employers are also required to ensure that ventilation vents do not feed back through open windows and that ventilation filters are cleaned and replaced according to manufacturer instructions.
Personal Protective Equipment for Covid – 19
Each employer is required to regularly check for updates on the National Department of Health’s website in addition to the National Institute of Communicable Diseases and the National Institute for Occupational Health.
The purpose of this is to ensure that employers are updated with specialised PPE for Covid-19 which may be required in guidelines given the workplace’s nature or worker’s duties in relation to the level of risk.
Covid – 19 Workplace Plan for Small Businesses
Where an employer has 10 employees or less, the following measures must be taken:
- Develop a basic plan for a phased return to the workplace where the employer is allowed to recommence operations. In cases like these, the employer must consider those who can work remotely as well as those who are older than 60 and/or who have comorbidities
- Arrange the workplace in such a way that it complies with the one and a half metre social distance between employees. Where this is not possible, the employer must place physical barriers between workstations to prevent the transmission of the virus.
- Ensure that employees who present with symptoms are prohibited from working.
- Contact the relevant provincial inspectorate for instruction and direct employees to act in accordance with instructions.
- Provide employees with cloth masks or require employees to wear an effective cloth mask that covers the mouth and nose while they work.
- Provide employees with enough hand sanitiser, soap, and clean water so that they can wash their hands. Employees must also be provided with disinfectants to clean their workstations.
- Ensure that employees wash their hands and sanitise while they are at work.
- Ensure that workstations are frequently disinfected.
- Take any other measures according to the workplace risk assessment.
Covid 19 - Employee Responsibility
Every employee is obligated to ensure that they comply with the measures which have been introduced by the employer, as required by these Directions, in addition to the employee’s responsibilities as indicated in OHSA.
Refusal to work as result of Covid-19 infection
If there is an imminent and serious risk of exposure to Covid-19, employees have the right to refuse work. Employees who refuse to work as result of this must notify the employer personally or through their health and safety representative with their refusal and the reason for it.
Employers who have been notified of a refusal to work must:
- Consult with the compliance officer and the health and safety committee where these are in place.
- Resolve any issues that may arise from the exercise pertaining to the right to refuse work.
- If the matter cannot be resolved internally, an inspector must be notified of the issue within 24 hours.
- Comply with all prohibitions which are issued by an inspector relating to section 30 of OHSA.
Whether or not the person who refuses to work has exhausted any other external or internal procedures, Sub-direction (1) will still apply. Persons may not benefit from, or promise benefit to any persons for, not exercising their right in terms of the sub-direction.
No person may threaten to act against another because they have exercised or intend to exercise their right to refuse work. Employees may not be dismissed, disciplined, prejudiced, or harassed for refusing to perform work as contemplated in the sub-direction.
Covid 19 - Deductions from remuneration
Employers are prohibited from deducting from employees’ remuneration in terms of these Directions. Employers may not require or permit an employee to make payment to them or any other person, in respect of anything that the employer is obligated to provide as per these Directions.
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