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‘Employers may still require employees to wear masks’

Workplaces where there is a high risk of Covid-19 transmission may insist that employees continue wearing masks even though some of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions have been scrapped, according to law firm Cliffe Dekker Hofmeyr (CDH).

On Wednesday, Minister of Health Dr Joe Phaahla signed a document repealing regulations 16A, 16B and 16C of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions made under the National Health Act.

  • Regulation 16A required a mask to be worn in any public-use indoor space or when on public transport.
  • Regulation 16B limited any gathering of more than 100 people to 50% of maximum venue capacity if everyone was vaccinated, or to a maximum of 1 000 people indoors or 2 000 people outdoors if vaccination status was not checked.
  • Regulation 16C demanded either vaccination certificates or recent negative PCR tests, or proof of recovery from Covid-19, from all travellers older than 12 entering South Africa.

CDH said the repeal of the above regulations is not specifically directed at employers and their workplaces.

“All employers still have an obligation in terms of the Occupational Health and Safety Act to provide, insofar as is reasonably practicably possible, a safe working environment. This is in line with the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace and the Hazardous Biological Agents Regulations.”

In terms of the HBA regulations, Covid-19 is classified as a Group Three Hazardous Biological Agent. This presents a risk in respect of an agent that may cause severe human disease, which presents a serious hazard to exposed persons, and which may present a risk of spreading to the community.

Where there is a risk of exposure to Covid-19 in the workplace, an employer must conduct a further risk assessment before determining whether employees are no longer required to wear masks and revise their workplace plan.

As part of the risk assessment, employers must ensure that an employee’s risk of exposure to Covid-19 is limited through appropriate workplace measures, such as vaccination, the wearing of masks, practising social distancing and sanitising.

These precautions may be necessary, particularly in workplaces where there is a high risk of Covid-19 transmission, such as those in the healthcare and mining sectors. In these workplaces, employers may still insist that employees continue wearing masks in the workplace as part of their risk assessment, regardless of the latest regulations.

Where there is minimal risk of exposure to Covid-19 in a workplace, employees would not be required to wear masks. Nevertheless, employers should encourage employees to continue taking necessary precautions, such as social distancing and sanitising, to limit the transmission of Covid-19 in the workplace.

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