1 June, 2022 In News

PROPOSED EMPLOYMENT LAW DEVELOPMENTS PART II

THE COVID CODE

On lifting the national state of disaster on 5 April 2022, the Code of Practice for Managing Exposure to Sars-CoV-2 in the Workplace 2022(the COVID Code) was enacted to regulate and manage the spread and impact of COVID-19 in the workplace.

A note on the COVID Code:

  • The COVID Code emphasises an employer’s rights to implement mandatory vaccinations and provides clarity regarding when an employee may reject vaccinations (not limited by constitutional or medical grounds to do so);
  • It prescribes that, where an employee refuses to be vaccinated on the grounds of contraindication to the vaccine, the employee must provide a medical certificate to validate this. The employer may then request the medical evaluation of the employee to confirm their status, and all must be done at the employer’s costs;
  • The COVID Code provides legal guidelines for handling the pandemic and its impact in the workplace;
  • Employers are permitted to determine whether the employee is vaccinated;
  • The COVID Code removes the requirement for daily COVID-19 symptoms screening and reporting of such;
  • It necessitates reporting of only when an employee has COVID-19 symptoms;
  • It permits the employer to require a negative COVID-19 test result on return to the office;
  • The COVID Code prescribes that employers must reasonably accommodate employees who refuse vaccination;
  • It makes it feasible for employers to require a negative COVID-19 test result (at the employee’s expense) for the employee to gain access to the workplace.

Although the COVID Code provides a clear legal basis for the implementation of mandatory vaccinations, it seeks to balance the imposition with reasonable accommodation made by the employer where certain grounds of exemption apply, circumvented using the Code of Good Practice: Employment of People with Disabilities, published in terms of the Employment Equity Act. Dismissal for refusal to vaccinate is a measure of last resort, and fairness (substantive and procedural) should be practised by employers.