Thursday (5 May) marks the end of the transitional period under the Disaster Management Act Regulations. The question on many employers’ and employees’ minds today is: can they now do away with mask-wearing in the workplace?

The answer to this is not entirely clear, say legal experts at law firm Bowmans.

The transitional period provided for under the DMA Regulations was intended to afford the government an opportunity to finalise the much anticipated and highly contentious regulations under the National Health Act.

These regulations have not yet been finalised and, on 4 May 2022, the Minister of Health extended the period for public comment on the health regulations by a further three months, thus until 4 August 2022.

“However, to ensure that there is no gap in the legal framework when it comes to containing the spread of Covid-19, limited regulations under the National Health Act were published last night. These interim NHA regulations are largely similar to the transitional DMA Regulations that applied during the last month,” Bowmans said.

In particular, the interim NHA regulations provide:

• For the wearing of face masks when entering and being inside an indoor public place or when using public transport;
• For capacity limitations and number restrictions on gatherings; and
• For the regulation of international travellers entering South Africa.

“The interim NHA regulations allow the minister of health to assess the suitability of the above measures on an ongoing basis and to determine at any time that the measures are no longer necessary to contain the spread of Covid-19.

“In such a case, and upon notice in the government gazette, the measures will no longer apply. The minister may also reinstate such measures, if deemed necessary, by way of notice.

“Employers will recall that the DMA regulations specifically obliged them to require their employees to wear face masks when entering the employment premises and while performing their duties,” Bowmans said.

“Interestingly, the interim NHA regulations do not contain a similar provision. It may be arguable, therefore, that private employers who conduct their businesses from private premises are not required to enforce mask-wearing in the workplace, on the basis that such workplaces do not constitute ‘an indoor public place’.

“Private employers conducting their businesses from an indoor public place would, however, be obliged to require face masks.”

Employees should not be too hasty in tossing their masks 

Even if it may be argued that the mask-wearing provisions do not apply to all workplaces, mask-wearing may still be a reasonably practicable control measure that employers elect to continue to enforce, Bowmans said.

This is to ensure that they comply with their ongoing obligation to provide and maintain a safe working environment.

“In terms of the Occupational Health and Safety Act, read with the Hazardous Biological Agents Regulations, employers must implement reasonably practicable measures to control the risk of exposure to the relevant hazardous biological agents in the workplace. The HBA regulations now expressly list the SARS-COV-2 virus as a hazardous biological agent.

“Under the HBA Regulations, employers are required to conduct and update a risk assessment pertaining to hazardous biological agents to identify, amongst other things, what reasonably practicable control measures can be taken. Where appropriate, these measures should include face or eye protection or other suitable protective equipment or clothing.”

The Code of Practice: Managing Exposure to SARS-COV-2 in the workplace similarly requires a risk assessment and plan, Bowmans said.

“This code expressly enables employers to impose measures to limit the spread of the virus through social distancing, the wearing of facecloth masks, barriers, hand washing, sanitisers and surface disinfectants. Employers would accordingly be entitled (and in some cases, obliged) to continue the requirement for face masks and other health and safety measures in the workplace.

“With the number of Covid-19 cases in the country on the rise again and the threat of the fifth wave looming, employers are encouraged to assess the risks and their health and safety protocols carefully. They should also clearly communicate the particular measures that would apply in their workplaces to their employees and third parties entering the workplace.”

Mandatory mask-wearing may continue

While the current legal position on mask-wearing at the workplace may not be entirely clear, the legal position may be clarified once the full regulations under the National Health Act are promulgated, Bowmans said.

“In draft form, these regulations require an employer to provide employees with cloth face masks or shields to cover their noses and mouths, which implies that masks must be worn in the workplace.

“In the meantime, employers are advised not to throw caution to the wind and to think carefully before lifting mask requirements.”

Commentary by Talita Laubscher (partner) and Chloë Loubser (knowledge and learning lawyer) at Bowmans South Africa.