Can employees enforce mask-wearing in the workplace?

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contain the spread of COVID-19 relating to wearing face masks, gatherings and persons entering the country, have been repealed. 

There is currently no requirement in law for employers to impose the wearing of face masks in the workplace. This does not prohibit employers from implementing policies that require employees to continue wearing face masks while in the workplace.

KEY POINTS FOR EMPLOYERS 

The Code of Practice on Managing COVID-19 in the Workplace (“Code of Practice”), which came into effect on 05 April 2022, remains the national guideline on matters of health and safety in the workplace. The Code of Practice recognizes an employer’s right to implement mask-wearing in the workplace as a risk mitigation measure. 

The Code of Practice further describes the sort of risk assessment and plan that the employers are required to conduct, such as: - 

Social distancing measures, which includes working hours, remote working arrangements and the rotation of employees through shift planning; 

• PPE measures; 

• Personal hygiene measures; and 

• Any special measures to avoid the risk of infection or serious illness or death in respect of employees and employers. 

The setting of rules and standards in the workplace remains at the discretion of the employer. The courts will not intervene if these rules are valid and reasonable. A rule will be valid and reasonable depending on the following factors: - 

1. The employer had the authority to make the rule in terms of the employment contract; 

2. The rule complies with applicable statutes or regulations; and 

3. The rule is reasonably required for the efficient, orderly, and safe conduct of the employer’s business. 

If employers satisfy the requirements listed above, based on the prevailing circumstances at its place of business, then the rule will be found to be valid if it is challenged by an employee. 

While the risk of COVID-19 is diminishing, employers are still obliged to ensure a safe working environment for employees. 

A risk assessment remains essential, to implement and enforce a mask-policy in the workplace to protect employees. 

Our offices are available to assist in preparing policies to enforce mask-wearing in the workplace and communicating with employers/employees. 

Written by:

DUNSTAN FARRELL