Workplace Covid-19 regulations:

How should employers deal with Covid-19 workplace rules in the post pandemic era?

With the recent announcement by the Minister of Health, Dr Joe Phaahla, that the national mask mandates for indoor and outdoor facilities have been lifted as of 23 June 2022, it is safe to say that the country has officially arrived in the post-pandemic era.

We know that several cases have in recent months been referred to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) or the relevant Bargaining Council, for disputes ranging from unfair dismissals to unfair labour practices across all sectors.

Interestingly, the CCMA and Bargaining Councils have, in the majority of cases, ruled in favour of the employer. Two examples are Kok and Ndaka Security & Services (2022) 43 ILJ 958 (CCMA) (“Kok”) and National Union of Metalworkers of SA on Behalf of Manyika and Wenzane Consulting & Construction (2021) 42 ILJ 2341 (MEIBC) (“NUMSA v Wenzane Consulting Construction”).

In the Kok case, an employee referred an unfair labour dispute to the CCMA after he was placed on suspension for failing to be vaccinated as per the employer’s mandatory vaccination policy. In that case, the employer had undergone a rigorous process of risk assessments and consultations with employees and unions prior to implementing the mask mandate. Following the employer’s determination that the employee could not be accommodated unless he be vaccinated, the employee was suspended. Ultimately, the CCMA determined that the dismissal was fair because the employer had consulted at length with all the relevant stakeholders and the employee refused to submit for weekly Covid-19 tests.

In the NUMSA v Wenzane Consulting Construction case an employee had been dismissed for incorrectly wearing his facemask around his neck in defiance of the employer’s workplace mask mandate. The Bargaining Council found that the employee had been aware of the rule and had showed no remorse, therefore, his dismissal was found to be both procedurally and substantively fair.

Bearing in mind the above precedents, and the latest lifting of the national mask mandates by the Minister, it begs the question, how should employers deal with Covid-19 workplace rules in the post pandemic era? The Minister of Employment and Labour Law, Minister TW Nxesi published an updated Covid-19 workplace Code of Practice on 26 June 2022. In it, the Code confirms that certain Covid-19 workplace rules will remain in place and the prerogative in its implementation is ultimately left up to the employer after having conducted a thorough risk assessment. What’s more, is that employees may still refuse to work in circumstances that “reasonably” justify such refusal, for instance employees with co-morbidities whose attendance at the office may pose a justifiable risk to their health.

Interestingly, the Code does not require the concurrence from a health practitioner and the employee in question would simply need to inform the health/safety officer in the workplace. These employees may also not be prejudiced, disciplined or dismissed for the above refusal to work.

Employers will have to weigh the necessity for their existing Covid-19 workplace protocols, against the lifting of the national mask mandate and in conjunction with the above Code.

Bearing in mind the ambiguous language of the Code, employers will have to be alert for employees who may endeavour to “latch-on” to it in an attempt to avoid work and as such a thorough risk assessment and plan would be necessary.

Any employee against whom disciplinary action was taken, including dismissals, following the above developments, may have some recourse depending on the circumstances of each individual case.