Werksmans previously wrote an article providing an in-depth exposition of the old Code and the necessary consequences that would follow from the old code, both for employers and employees. This article may be accessed here.
On 24 June 2022, the Minister published the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46596 (new code). In the introduction to the new code, the Minister confirms that the old code was made in error and is liable to be set aside. The new code was published in terms of section 203(1) of the LRA whereas the old code was published in terms of section 203(2A) of the LRA. The stark difference being that in terms of section 203(1) of the LRA, Nedlac may prepare, issue and change or replace codes of good practice (such as the new code) on its own accord, whereas in terms of section 203(2A) of the LRA the Minister is required to consult with Nedlac prior publishing any new codes of practice.
While the old and the new code are not substantially different, employers and employees should note the following provisions contained in the new Code when developing a risk assessment and plan in the workplace in terms of the new code and the Occupational Health and Safety Act (OHSA):
Although it is no legal requirement for employees to wear masks in order to enter an employer’s premises, Covid-19 is still categorised as a Group 3 hazardous biological agent under Hazardous Biological Agents Regulations (published in terms of section 43 of the OHSA) and employers still have an obligation to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of workers. In view of these factors, an employer may still require its employees and third parties, such as customers and clients, to wear masks or other PPE specific to Covid-19 if these safety requirements are deemed necessary in terms of the employer’s risk assessment and plan.
In the final analysis, the new code essentially is not materially different to the old code and is not couched in prescriptive terms. This, in our view, allows employers to apply the new code in accordance with their particular safety requirements. This view finds support in clause 2(4) of the new code which provides that "the code is intentionally general because workplaces and their requirements differ." Accordingly, departures from the non-obligatory provisions of this code may be justified in appropriate circumstances.