Covid-19 still vexing occupational health

When Covid-19 was first detected in March 2020, it was feared that the pandemic would be another 1918 Spanish Flu or worse. In 1918, however, South Africa lost 3,5% of its population over a six-week period due to that pandemic, with 81 000 people dying per day in this time. While Covid-19 isn’t a repeat of the Spanish Flu, it has still had devastating effects

As indicated in previous articles, Covid-19 has had an impact on occupational health and safety. Taking all things into consideration, the State of Disaster had to be lifted to return as much as possible to normal life.

There are some unusual features associated with the handling of Covid-19, two of which we will cover here.

Firstly, when a vaccine became available and was promoted by the government, parliament was not approached to pass a law making the vaccine mandatory. Instead, what we witnessed was private sector companies making the vaccine a condition of employment on a unilateral basis. This they did by claiming to rely on health and safety legislation. Thus, in an indirect legislative fashion, employers took it upon themselves to impose vaccination mandates on employees.

The second rather strange development arose when it became clear that the State of Disaster would be lifted, along with all the accompanying regulations. At this time, the Department of Health announced it would reintroduce these regulations as part of its own set of regulations. In other words, a permanent State of Disaster could in fact be maintained without a State of Disaster being declared or parliament being involved. By any standard, this is certainly a bizarre situation.

There are other oddities. The imposition of vaccination as a post-employment condition of employment encountered little opposition. As indicated, this was achieved with no specific Act of Parliament, no specific directive of any government department, and – to the extent that the courts became involved – with the concurrence of the courts. We are now in the final stages of a government department declaring State of Emergency regulations after the State of Disaster has been lifted.

In this regard, at least, a legal challenge has been launched at this late stage of the pandemic, so some clarity and legal certainty may finally emerge. Launched by the National Employers’ Association of South Africa (NEASA) on May 18, 2022,the application focuses on occupational health matters, while there are other matters which are not the subject of the court case. In the first instance, the court is being asked to set aside the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace for a variety of reasons. The court is also asked to declare any scheme of mandatory vaccination authorising private personas or entities to compel employees to be vaccinated against Covid-19 under threat of loss of employment to be unconstitutional, unlawful, and invalid.

The notice of motion elaborates on this in further detail. It will also be recalled that an attempt was made to repackage Covid as a hazardous biological hazard and thus bring it under the purview of the Hazardous Biological Hazard regulations. The Hazardous Biological Agents (HBA) Regulations were passed in 2022. To anyone who has studied the original HBA regulations, it is clear these regulations do not deal with the Covid problem, and never have. As the US Supreme Court rightly pointed out, Covid is a public health matter, not an occupational health matter; the HBA regulations simply do not fit. Trying to force the fit is like trying to push a square peg into a round hole.

At least this application will provide clarity on the issue of employer-imposed vaccines on employers.

What is not under consideration is the attempt to deal with the Covid-19 pandemic – clearly, a public health matter of exceptional proportions – via normal banal regulations. Usually, dealing with exceptional circumstances requires exceptional measures. At the one extreme is the suspension of the constitution and the declaration of Martial Law and a State of Emergency, culminating in the declaration of a State of Disaster. In terms of the usual process, exceptional action can only be taken once the exceptional circumstance has been declared.

These exceptional measures usually flow from the declaration, and this is what has happened to this point. A national State of Disaster was called in terms of the Disaster Management Act and then a plethora of regulations were promulgated in terms of this Act. Once the State of Disaster is lifted, the regulations cease. The Code of Practice which is being challenged was promulgated in terms of the Labour Relations Act and will come into effect after the lapsing of the National State of Disaster.

In a similar vein, the HBA Regulations were promulgated in terms of the Occupational Health and Safety Act. HBA regulations are not new, these  are merely replacing regulations from 2001. The difference is that Covid-19 now appears in the Tables as a biological agent.

So, in both cases, what was an exceptional problem – Covid – suddenly reappears as an everyday problem. What required a declaration of a State of Emergency or Disaster is now being dealt with as an everyday event.

It seems preferable to maintain that dealing with exceptional circumstances requires a declaration that such an exceptional circumstance exists, and to take exceptional temporary measures. When the emergency passes, so too do the measures. Contrary to this, the current approach is to have exceptional measures in place under normal circumstances.

The other odd thing about this entire episode is the complete absence of parliament. One would think the exceptional measures should only exist to enable parliament to be summoned and the laws to be under the control of parliament thereafter, yet parliament no longer seems to play any role at all. Individual government departments have somehow usurped the power normally exercised by parliament. At the very least, this is extremely worrisome.