The Department of Health’s new measures for managing the coronavirus pandemic, along with the simultaneous release Labour & Employment’s new code of conduct for managing COVID-19 in the workplace, has left employers, employees and the general public with confusing morass of legislation to navigate, writes MedicalBrief.
to enable it to lift the national State of Disaster, Health Minister Dr Joe Phaahla has released a slew of proposed changes to current health regulations, some of which have left experts baffled.
Business Day reports that at the same time, Labour & Employment Minister Thulas Nxesi published a new code of conduct for managing COVID-19 in the workplace, reaffirming employers’ rights to introduce vaccine mandates and tightening the grounds on which employees may refuse to get jabbed. The Health Minister’s proposed regulatory changes cover rules for the size of gatherings, social distancing, quarantine and isolation, funerals, travel in and out of SA, and the handling of dead bodies.
They are contained in amendments to three sets of regulations to the National Health Act and amendments to regulations to the International Health Regulations Act, published in the Government Gazette on 15 March. The public has 30 days to comment.
While the Health Department said the changes are intended to provide the government with the tools to manage COVID-19 and other notifiable diseases, independent sources reportedly told Business Day it is unclear how restrictions will be tightened or loosened, and which aspects are specific to COVID-19. They also highlighted inconsistencies in the proposed changes to the regulations relating to the surveillance and control of notifiable medical conditions, which limit funerals to 100 people but permit indoor gatherings of up to 1 000 people.
Nxesi published the Code of Practice for Managing Exposure to SARS-Cov-2 in the Workplace, which comes into immediate effect when the State of Disaster ends. The Business Day report says it takes the rights and obligations of employers and employees – which were set out in a set of rules Nxesi implemented under regulations to the Disaster Management Act – and makes them rights and obligations under the Labour Relations Act instead.
However, the new code goes a step further, strengthening the rights of employers to request the vaccination status of employees, said Jacqui Reed, of Herbert Smith Freehills. They also limit the grounds employees can use to refuse to get vaccinated, and only medical conditions will be regarded as justifiable. “These regulations are trying to deal with the arguments that have come up in recent CCMA cases,” she said.
Several labour unions have vowed to go to any lengths possible, including the Constitutional Court, to oppose a move allowing employers to ask for proof of vaccinations.
The Mercury says according to Nxesi’s new code, employers will have permission to require proof of COVID-19 vaccination from staff. Only staff who produce a medical certificate showing that they have contra-indications will be exempted from such a demand from employers. “In giving effect to this code, an employer may require its employees to disclose their vaccination status and to produce a vaccination certificate,” reads the code.
In terms of the code, an employer is allowed to notify an employee of the obligation to be vaccinated and counsel the worker on the issues related to vaccines. Employers must also permit employees, at their request, to consult a health and safety or worker representative or a trade union official and give administrative support to the employees to register and to access their COVID-19 vaccination certificates.
However the National African Teachers’ Union (Natu) warned that the proposal was likely to be used to force workers to vaccinate, even when they were against it, and threatened to challenge the proposal in court if necessary. “As a matter of principle, we are not against vaccination, but believe that this should be a matter of choice,” said Natu acting president Sibusiso Malinga. The Mercury report adds the Public Servants’ Association also raised concerns about how the policy could be used as a form of discrimination, warning that it would also pursue the legal route if there were attempts to force people to vaccinate. The SA Democratic Teachers’ Union (Sadtu) expressed an eagerness to scrutinise the policy proposal.
“We have not had sight of this. It will be interesting to see how it is couched,” said Sadtu general-secretary Mugwena Maluleke.
health regulations gazette
Business Day Pressreader article – Experts baffled by new COVID rules (Open access)
The Mercury Pressreader article – Vaccine certificate war looms (Open access)
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SA employers must weigh implications of conflicting regulations on COVID-19
COVID-19 regulatory contradictions: Employers should take conservative approach
High costs and no benefits: Why SA’s COVID-19 regulations had to change
Presidency: SA’s Level One regulations relaxed