By Lauren Salt for Mondaq
After 818 days of mandatory mask-wearing, the Minister of Health, Mr Joe Phaahla, repealed the new National Health Act Regulations relating to the Surveillance and Control of Notifiable Medical Conditions (“NHA Regulations”).
These required the public to wear masks when:
- entering and being inside an indoor public place; and
- making use of public transport.
This means that there are no longer any laws or regulations mandating mask-wearing.
While a lot of people will be rejoicing at this news, many employers who have continued to implement mask-wearing in the workplace (despite there being no obligation to do so under the NHA Regulations) will be asking: “so, now what?” Do employers need to abandon mask-wearing too?
Key points for employers and mask-wearing
This is not the first time employers have asked this question. Prior to the enactment of the now repealed NHA Regulations, the Transitional Arrangements (which came into force at the end of the State of National Disaster) provided that an employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a face mask while performing his or her duties.
However, this provision was not carried through to the NHA Regulations, which have now been repealed.
In this regard, the Code of Practice on Managing COVID-19 in the Workplace, which came into force on 5 April 2022 and has not been in any way affected by the repealing of the NHA Regulations, recognises an employer’s right to implement mask-wearing in the workplace as a risk mitigation measure.
The Code of Practice provides that the risk assessment and plan that employers are required to conduct (in terms of the Occupational Health and Safety Act, 1993 and the relevant regulations) and have in place in terms of the Code of Practice may include:
- social distancing measures, including minimising the number of workers in the workplace through rotation, staggered working hours,
- shift and remote working arrangements;
- PPE measures;
- personal hygiene measures such as the wearing of facecloth masks, barriers, hand washing, sanitisers and surface disinfectants;
- any special measures to mitigate the risk of infection or serious illness or death in respect of individual employees at increased risk, such as reducing the numbers in and the duration of occupancy in meeting rooms.
The imposition of mask-wearing in the workplace should be guided by the employer’s risk assessment, which should be regularly updated to cater to the ever-changing risk profile of the pandemic and their operational requirements.
The way forward
Employers should, before abandoning or maintaining mask-wearing in the workplace, consult their risk assessment and ensure that, either way, their decision is underpinned by a justifiable reason. To the extent that an employer elects to maintain mask-wearing and employees refuse to obey the instruction, the employer may have grounds to discipline employees for insubordination.