On 22 June 2022, the minister of health published a notice in the government gazette in terms of which regulations to contain the spread of Covid-19 relating to the wearing of face masks, gatherings and persons entering the country, have been repealed.
For the workplace, there is no certainty on whether employers are required by law to impose the wearing of face masks – colloquially speaking, masks have fallen, says Sibusiso Dube, partner at law firm Bowmans.
“Although there is no requirement in law for employers to impose the wearing of face masks in the workplace, nothing precludes employers from implementing policies that require employees to continue wearing them while at work.
“The setting of rules and standards for the workplace remains the prerogative of an employer and, provided that such rules are valid and reasonable, courts will not interfere.”
Dube noted that this is a well-established legal principle. Whether a rule is valid depends on if:
- The employer had the authority to make the rule in terms of the employment contract;
- The rule complies with applicable statutes or regulations; and
- The rule is reasonably required for the efficient, orderly, and safe conduct of the employer’s business.
“If an employer is able to satisfy the requirements above, based on the prevailing circumstances at its workplace, then the rule will be found to be valid if challenged by an employee. Non-compliance with such a rule may attract sanctions.
“It will be interesting to see how things unfold in the workplace over the next few weeks as we take another step towards ‘normality’. However, one cannot discount the devastating effect that Covid-19 has had. How individuals approach life going forward in light of the repealed regulations will most likely depend on their personal experiences.”
While some may be comfortable walking around without wearing masks in the office or any public areas, others may still feel vulnerable, irrespective of the scientific reasoning behind the repeal of the regulations relating to mask-wearing, Dube said.
“What is clear, however, is that the law does not require any individual to wear a face mask in the workplace or otherwise.
“Employers are advised to notify their employees of the requirements for their workplaces, including that the decision to wear a mask or not is a decision that each employee can make for themselves, as soon as possible.”
A word of warning
While the rules around masks have now dropped, the government has cautioned against employers who ‘adopt a cavalier attitude towards health and safety in their workplaces’.
“The health and safety of workers remain a priority for our labour market. The Code of Practice on the Management of Exposure to Sars-Cov-2 in the Workplace remains the guiding principle on matters of health and safety in the workplace and is still the responsibility of all leaders to design an inclusive environment that promotes safety and makes workers comfortable in the workplace,” said Employment and Labour minister Thuals Nxesi.
He added that the code provides a guide to employers and workers as to what are reasonably practicable measures in managing SARS-CoV-2.
“Hazardous biological agents, of which the SARS-Cov-2 is one, are regulated by the Regulations for Hazardous Biological Agents.
“This regulation places a statutory obligation on employers to conduct a risk assessment to determine measures to limit infection and, transmission and mitigate the risk of serious illness or death of an employee or other persons who may be directly affected by the activities of the workplace, such as visitors, customers, and contractors.”