The Department of Employment and Labour has published a new code of practice to guide employers on measures that need to be taken in the workplace to contain Covid-19​ infections once the national state of disaster ends.

Legal experts at Webber Wentzel have unpacked the new code and explained what it means for businesses, employees and thorny issues such as vaccinations.

Employees’ vaccination status and symptom reporting

Every employer must take measures to determine the vaccination status of its workers and, in giving effect to the code of practice, may require its employees to disclose their vaccination status and to produce a vaccination certificate.

Workers must be required to immediately report any symptoms associated with Covid-19 – as described by the NICD from time to time.

Covid-19 testing

If an employee informs the employer that they are experiencing Covid-19-related symptoms, an employer may require that employee to be tested for Covid-19 before permitting the employee to enter the workplace or report for work.

No deduction from employee’s pay

Employers may not make any deduction from an employee’s remuneration or require or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide or to do in terms of the code of practice.

Symptomatic employees

Only those workers who have been diagnosed with Covid-19 and are symptomatic must:

• Inform their employer; and
• Isolate themselves for the period recommended by the National Department of Health or a longer period, if recommended by a medical practitioner.

These employees must be placed on sick leave and may not be discriminated against. If it appears that the worker contracted Covid-19 arising from and in the course of employment, a claim in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA) must be lodged with the Compensation Fund.

Requiring employees to be vaccinated

The code of practice still allows employers to determine, by risk assessment, that employees be vaccinated. The refusal of an employee to be vaccinated is also contemplated.

If an employee refuses, an employer must counsel the employee and take steps to reasonably accommodate the employee in a role that does not require vaccination.

However, if an employee presents a medical certificate referring to contra-indications and the employer accepts the certificate – or obtains a second evaluation that confirms the medical certificate – that employee must be accommodated in a position that does not require vaccination.

Refusal to work

The code of practice retains the right of an employee to refuse to perform any work which reasonably appears to that employee or a health and safety representative to pose an imminent and serious risk of exposure to the virus.

Once notified of this refusal, the employer must endeavour to resolve the issue. If the issue cannot be resolved internally, an inspector must be notified.

This right may be used irrespective of any other internal processes and an employee may not be threatened, intimidated, dismissed or otherwise prejudiced for invoking this right. Disputes about this protection are referred to the CCMA.