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Mask mayhem missed by moments | 05 May 2022
BY Lauren Salt

Mask mayhem missed by moments

There has been great anticipation as to whether the new National Health Act Regulations relating to the Surveillance and Control of Notifiable Medical Conditions (“NHA Regulations”) would be promulgated before the lapsing of the transitional Disaster Management Regulations (“Transitional Regulations”) at midnight on 4 April 2022.

Naysayers have been pessimistic, particularly since there has already been one extension of the period for public comment on the draft NHA Regulations.

At the 11th hour on the evening of 4 May 2022, the Minister of Health, Dr Joe Phaahla, again extended the period for public comments on draft NHA Regulations by three months with effect from 5 May 2022. This extension seems to have arisen out of a court challenge to, amongst other things, the period in which the public was required to comment.

The Minister has announced that the new closing date for submission of comments is 5 July 2022, although we note that the Notice provides for three months from 4 May 2022 (which would be 4 August 2022).

The primary concern regarding the delay of the new NHA Regulations was that the purpose of the Transitional Regulations, which dealt primarily with mask wearing and gatherings, was to ensure essential public health precautions were not interrupted before the new NHA Regulations came into effect.

So what now that the period for comment has been extended until 5 July 2022?

Similarly, at the 11th hour, some provisions of the NHA Regulations have been enacted. Unsurprisingly, these new regulations largely deal with the same aspects as contained in the Transitional Regulations. Of greatest importance are mask wearing and gatherings.

The high watermark of the new (limited) NHA Regulations is that the public still have to wear masks when –

  • entering and being inside an indoor public place; and
  • making use of public transport.

Key points for employers re mask wearing

For employers, there are two key aspects which have not been carried through from the Transitional Regulations and the draft NHA Regulations respectively.

The first aspect is the requirement that an employer may not permit 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. But employers should not be alarmed, as they are still entitled to enforce mask wearing in the workplace – this too is recognised by the Code of Practice on Managing Covid-19 in the Workplace which came into force on 5 April 2022.

The second aspect that seemingly has not survived the draft regulations on mask wearing is the employer’s obligation to provide employees with a face mask or shield. This is an obligation that originally came out of the legacy Consolidated Direction on Occupational Health and Safety in Certain Workplaces (“Consolidated Direction”).

Comments on this draft regulation have been that –

  • regulation of employment-related matters in the NHA Regulations is misplaced as this should reside in employment and/or occupational health and safety regulations; and
  • an employer is likely to have already complied with this obligation under the Consolidated Direction and should not be expected to bear the costs of repeatedly replacing employees’ cloth masks.

An interesting point to note is that the new NHA Regulations give the Minister of Health free rein to amend the mask wearing requirements as he sees fit. This may be something which we see in operation as we enter and exit new waves.

Key points for employers re gatherings

In respect of gatherings, the new NHA Regulations provide that any indoor or outdoor gathering can have a maximum capacity of 50% occupation, provided that every attendee provide a vaccination certificate or a valid negative Covid-19 test. Lacking this, the attendance must be limited to 1 000 or 2 000 attendees respectively for indoor and outdoor events or 50% capacity, whichever is the smaller.

The latter qualification seems incongruent with the purpose of the regulations for smaller gatherings as the non-compliant position is the same main requirement. However, be that as it may, nothing too material has changed from the position under the Transitional Regulations.

The way forward

Notwithstanding the fact that the full set of NHA Regulations has not been enacted, at least there is no gaping hole in the Covid-19 legal framework on the “big ticket” items.

To be cautious, employers are advised to comment by 5 July 2022 on the draft NHA Regulations, should they wish to do so, and then keep an eye out for the additional NHA Regulations which will deal with, amongst other things, social distancing requirements.  

 

Lauren Salt

Employment | Executive

lsalt@ENSafrica.com