5 April 2022 Employment Law Alert

From disaster to recovery: and the thirty days of transition in between

On 4 April 2022, President Cyril Ramaphosa announced the end of South Africa’s National State of Disaster with effect from midnight on 4 April 2022. In line with the end of the national state of disaster, all regulations and directions made in terms of section 27(2) of the Disaster Management Act 57 of 2002 (DMA) are repealed with immediate effect, save for regulations 67 (protocols in public spaces), 69 (gatherings), 75 (partial re-opening of borders), as well as the regulations pertaining to the social relief or distress fund, the extension of driver licences and permits, and the directions pertaining to the COVID-19 Vaccine Injury No-Fault Compensation Scheme (the Scheme), which shall remain in effect for 30 days following the end of the national state of disaster, whereafter they will automatically terminate.

The most notable of the transitionary provisions in the employment context are as follows:

  • the wearing of face masks is mandatory when in an indoor public space (which includes the workplace) for all persons above the age of six;
  • no person, above the age of six years of age, shall be permitted to use public transport or enter or occupy any building or premises used by the public to obtain goods and services without wearing a face mask;
  • face masks are not mandatory in open public spaces however social distancing of at least 1meter must be maintained;
  • no employer may allow any employee to perform their duties or to enter the employment premises if the employee is not wearing a face mask while performing their duties;
  • gatherings at a workplace for work purposes are permitted subject to strict adherence to all health protocols and social distancing measures;
  • only the 21-land border which were operational in terms of the last alert level 1 will remain open during the transitionary period;
  • international air travel is limited to the following airports; O.R Tambo International Airport, King Shaka International Airport, Cape Town International Airport, Lanseria International Airport, and Kruger Mpumalanga International Airport; and
  • travel to and from South Africa is permitted subject to persons producing a valid vaccination certificate or a negative COVID-19 test recognised by the World Health Organisation which is no older than 72 hours.

In addition, and importantly for employers who have or are considering implementing a mandatory vaccination policy, with effect from 4 April 2022, direction pertaining to the Scheme were promulgated. These directions relate to the administration of the Scheme, the vaccines applicable to the Scheme, the eligibility of claims and the process by which person may lodge a claim with the Scheme. The Scheme and the directions will continue in force and effect until a notice is published in the Government Gazette terminating the Scheme by the cabinet member responsible for Health, in consultation with the cabinet member responsible for Finance. The Scheme will remain in effect until the period for the lodgement of claims with the Scheme has expired and all lodged claims have been finalised. Furthermore, it is important for employers to note that the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces published on 11 June 202, which were the authority on workplace health and safety under the state of national disaster no longer remain in force. The Code of Good Practice: Managing exposure to SARS-COV-2 in the Workplace, 2022 (Code) published by the Department of Employment and Labour on 15 March 2022 (Code) is now in effect. The Code is intended to guide employers on the manner in which to fulfill their obligations to keep the workplace safe following the end of the national state of disaster, which includes an obligation to limit and mitigate the risk of COVID-19.

While the end of the national state of disaster marks an end to many legal restrictions pertaining to freedom of movement and gatherings, it by no means marks the end of the pandemic. The government continues to recommend social distancing, the wearing of masks and other safety precautions to ensure out continued safety.

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