On 22 June 2022, the South African 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the spread of Covid-19 relating to the wearing of face masks, gatherings and persons entering the country, have been repealed.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 now certainty on whether employers are required by law to impose the wearing of face masks – colloquially speaking, masks have fallen.
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. 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 How individuals approach life going forward in light of the repealed regulations will most likely depend on their personal experiences.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 to walk 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. 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. This will assist in avoiding confusion and potential tension between employees who are comfortable without masks and those who still feel vulnerable and want to continue wearing face masks.
Written by Sibusiso Dube, Partner, Bowmans