23 June 2022 Employment Law Alert

Mask mandate over, or is it?

On Wednesday, 22 June 2022, Regulations 16A, 16B and 16C relating to the Surveillance and the Control of Notifiable Medical Conditions were repealed. As a result, COVID-19 regulations such as the wearing of masks, limitations on gatherings and entry requirements for foreigners into South Africa, were officially lifted. While many South Africans may be celebrating this news, employees may still be required to wear masks in the workplace.

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 (the HBA 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 kinds of precautions may be necessary especially in workplaces where there is a high risk of COVID-19 transmission, such as those in healthcare and mining. 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. Notwithstanding this, employers should still encourage employees to continue taking necessary precautions such as social distancing and sanitising to limit the transmission of COVID-19 in the workplace.

The good news is that after more than two years of mask wearing and isolated working conditions we are moving towards a sense of normality. Those in the sports, entertainment and hospitality sectors will welcome the lifting of the restrictions on gatherings and pray for a rapid economic recovery. With these new freedoms comes responsibility. We should be mindful of taking the necessary precautionary measures to avoid the reintroduction of restrictive COVID-19 measures.

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