Under the newest South African regulations, a person who has tested positive for COVID-19 and is asymptomatic is not required to isolate, writes Jacqui Reed of Herbert Smith Freehills. This is in apparent conflict with other regulations that employees may refuse to work in circumstances that pose “an imminent and serious risk of exposure to infection”.
Reed, an employment law specialist, writes:
The 1 February amendment to the regulations in terms of the Disaster Management Act relates to the requirement to isolate when testing positive for COVID-19. It provides that anyone confirmed as positive by a laboratory for COVID-19 and asymptomatic is not required to isolate. It also provides that any person confirmed positive by a laboratory for COVID-19 and who has symptoms must isolate for seven days unless a medical practitioner recommends a longer period.
Some commentators have expressed concern about the apparent conflict between this amendment and clause 14 of the Consolidated Direction on Occupational Health and Safety in Certain Workplaces which provides that an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to infection.
While employers are required to consider the government's position in relation to the isolation requirements, they are not necessarily obliged to comply with government regulations insofar as they choose to conduct themselves in a manner that is more cautious than government currently requires. The government's reasons for relaxing restrictions even further are complex and undoubtedly influenced by several factors that simply do not arise in the workplace or take into account the circumstances of a particular workplace.
An employer who still requires testing, despite the government not requiring people to isolate if positive and asymptomatic, may be able to justify the requirement to test by indicating that it does not want the virus to spread in its workplace and or to be responsible for employees contracting Covid-19 as a result of the general trend where many employees are now returning to the office.
If there is a probability that the employee contracted the virus from another employee and is severely ill, hospitalised or dies, the employer would have failed in its duty of care and its duty to provide a healthy and safe working environment for the employee. This places the employer at significant legal risk.
We know from the most recent CCMA decision that the tracking and tracing done by the employer indicated that the employee who refused to vaccinate probably gave the virus to several employees and resulted in an office closure which was almost disastrous from an economic perspective.
Also, if there is an outbreak of the virus at a particular workplace and employees become very ill, are hospitalised or die, this not only affects the company's ability to operate efficiently and effectively but it will also negatively impacts upon the morale and mental health of those employees who are not severely affected.
There are several anecdotal examples of where employers have seen the negative impact on employees' mental health when their colleagues die from Covid-19 related complications. We have also seen the negative impact on the organisations' bottom line when employees are either too sick to work, and so the employer is not operating at full capacity, or the organisation is required to close because employees are not well enough to attend at work.
The risk of a complaint by an employee in terms of clause 14 of the Direction will also arise where employees who test positive but are asymptomatic are permitted to attend at the workplace.
Despite this, it would be prudent for employers who have implemented a mandatory vaccination policy which requires proof of vaccination or a regular Covid-19 test to review their risk assessment (which was the first step in the process of implementing a mandatory vaccination policy) and ensure that, as far as possible, they are in a position to justify the decision to implement and enforce such a policy in circumstances where the government has issued regulations which appear to render the requirements moot.
Jacqui Reed is an employment lawyer and Senior Associate at Herbert Smith Freehills. This article first appeared on the News24 site and is republished in MedicalBrief with permission from the author.
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