New workplace Covid-19 rules published, to begin when state of disaster ends

Employment and labour minister Thulas Nxesi has published new rules for managing Covid-19 in the workplace that will come into effect when the national state of disaster is lifted. These include reaffirming employers’ rights to introduce vaccine mandates and tightening the grounds on which employees may refuse to get jabbed.

The development is an important part of the government’s efforts to ensure there is a coherent legislative framework in place to help manage the coronavirus pandemic when it ends the national state of disaster, brought into effect two years ago. The government is under growing pressure to end the state of disaster, as it has been used to implement sweeping restrictions that have not been subject to parliamentary oversight.

Earlier this week the state of disaster was extended until April 15.

The Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022 was published by Nxesi in the Government Gazette on Tuesday. It takes the rights and obligations of employers and employees set out in a set of rules that were brought into effect by Nxesi in terms of regulations to the Disaster Act, and makes them rights and obligations under the Labour Relations Act instead.

However, the new code goes a step further, strengthening the rights of employers to request the vaccination status of employees, and limiting the grounds they can use to refuse to get vaccinated to medical conditions, said Jacqui Reed, senior associate at Herbert Smith Freehills.

“These regulations are trying to deal with the arguments that have come up in recent CCMA cases,” she said.

The CCMA has upheld the decisions of several employers to either suspend or dismiss employees who refused to get vaccinated or take weekly tests. Among the arguments used by the employees were their constitutional rights to bodily integrity and unfair discrimination on religious grounds, said Reed.

The new code says an employee may refuse to get vaccinated if they can produce a medical certificate showing it is contraindicated, but the employer may refer the employee for a confirmatory medical evaluation at the employer’s expense.

kahnt@businesslive.co.za