Employers must know your Covid vax status

Posted in Latest News

RUSTENBURG HERALD – RUSTENBURG – No exceptions: all South African employers must take measures to determine the vaccination status of their workers. This is according to the latest instructions by the department of Employment and Labour for managing Covid-19 in the workplace.

According to President Cyril Ramaphosa, the country is planning to exit its coronavirus-induced State of Disaster. This will bring an end to two years of regulations governed by the Disaster Management Act. But this now means that restrictions associated with different levels of lockdown to manage the Covid-19 pandemic will be incorporated into existing legislation.
It also means that rules around managing Covid-19 in the workplace are also changing.
Workplace rules have remained unchanged since June 2021. That’s when last the department of employment and labour updated its Consolidated Direction on Occupational Health and Safety measures in certain workplaces.
Within the context of South Africa’s Occupational Health and Safety Act (OHSA), these directions set the rules for mask-wearing, social distancing, and symptom screening at workplaces.
The directions required employers to develop risk assessments plans to determine the risk of exposure and the control measures to limit infection. Part of these risk assessments included a provision for developing a mandatory vaccination policy, bearing in mind employees’ Constitutional rights to bodily integrity and right to freedom of religion, belief, and opinion.
Since then, several major South African companies have implemented mandatory vaccination policies. Being fired for refusing to be vaccinated against Covid-19 has been upheld by the Commission for Conciliation, Mediation and Arbitration (CCMA).
The rules around vaccinations and other Covid-19 containment measures in the workplace across South Africa were updated last week, when the Minister of
Employment and Labour, Thulas Nxesi, gazetted the “Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace.”
“In due course, the Minister will issue OHS regulations to supplement the Code,” the department said on 15 March.
“The code’s purpose is to assist employers and employees in managing SARS-CoV-2 exposure in the workplace by guiding employers and employees in conducting or updating a risk assessment in accordance with the OHSA and Hazardous Biological Agents, 2022 in respect of SARS-CoV-2 exposure, developing a plan to limit infection, transmission, and mitigate the risks of serious illness.”
The Code of Good Practice relies greatly on previous directions issued in 2021 but has a few new additions, particularly when it comes to Covid-19 vaccines.
The Code now requires that “every employer must take measures to determine the vaccination status of their workers”. Additionally, employers are empowered to require their employees “to produce a vaccination certificate”.
Whereas the previous directions mentioned Constitutional grounds as a right to refuse vaccination, the new Code makes no mention of bodily integrity or right to freedom of religion, belief, and opinion.
“As such, it appears that the Code of Good Practice would be less generous to employees if they appeal to a non-medical (religious or belief based) objection to vaccination,” noted a law expert in response to the new rules.
Disclosure of an employees’ vaccination status – a “critical issue” addressed by the new Code, will however have to be done in accordance with the relevant Protection of Personal Information Act (POPIA) requirements.