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Uncertainty for employers around new COVID-19 Regulations

On 31 January 2022, Cabinet approved changes to the Adjusted Alert Level 1 COVID-19 Regulations with immediate effect.

Some notable adjustments made to the regulations include that:

  • those who test positive for COVID-19 but who have no symptoms do not have to self-isolate at all;
  • the self-isolation period for those who test positive for COVID-19 and who do have symptoms has been reduced from 10 days to 7 days; and
  • contacts do not have to self-isolate at all unless they develop symptoms themselves.

In what might be a relief for (some) parents around the country, schools are to go back to full-time learning; and as for the learners themselves, they are no longer required to observe the previously-required one-meter social distancing from others when back at school.

The Presidency has indicated that it has made these changes based on the levels of vaccination nationally and information it has gathered, which shows that the country has exited the fourth wave of the virus. These changes show a significant relaxing of the prevailing COVID-19 restrictions.

Interestingly, as things stand, certain elements of the Regulations are in conflict with the June 2021 Consolidated Direction on Occupation Health and Safety Measure in Certain Workplaces, the closest thing employers (and employees) have to a COVID-19 workplace rulebook.

Can employees still refuse to work with COVID-19 positive co-workers?

Most notable in this regard is arguably Direction 14 which deals with an employee’s right to refuse to work in circumstances where there is a (justifiable) risk that they might be exposed to COVID-19 infection.

According to Direction 14(1): “an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19.”

Employers may not promise employees any benefit for not exercising this right and they may not threaten to take any action against an employee for exercising this right, or otherwise subject them to any form of work-related detriment (like discipline or dismissal).

It remains to be seen whether employees may be able to rely on the new adjusted Regulations and the Consolidated Direction in order to assert their rights not to have to work with a fellow employee who has COVID-19 (and is not symptomatic) but is not being required to self-isolate because the new Regulations no longer require this. 

Can employers implement their own isolation policies?

It is also unclear whether, despite the new Regulations, employers are still entitled to impose stricter measures than the new Regulations entail.

For example, can an employer still require an employee who has COVID-19 but is asymptomatic to self-isolate at home? One would imagine that if the employee’s job is not one that can be performed remotely, in these circumstances, the employer would at the very least have to continue to pay the employee their normal remuneration during the employer-imposed self-isolation period. 

As things stand, the Consolidated Direction remains in force, read together with (to the extent possible) the Regulations. With no announcement forthcoming in relation to how these two regulatory documents are to be read together, further uncertainty has once more been introduced into an already uncertain COVID-19 dominated legal landscape.

Henry Rossouw

Employment | Executive

+27 82 708 0469

Buhle Mcengwa

Employment | Candidate Legal Practitioner

+27 79 726 6403