COVID-19: NEASA Challenges SARS-CoV-2 Code of Practice in the High Court

COVID-19

 

NEASA CHALLENGES SARS-CoV-2 CODE OF PRACTICE

 

IN THE HIGH COURT

 

On 5 April 2022, the Minister of Employment and Labour implemented the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, 2022 (‘the Code’). The aim of the Code is to guide employers and employees in managing exposure to SARS-CoV-2 in the workplace. However, the content of the Code does not constitute “guidance” but rather takes the form of legislation, thereby imposing obligations on employers, who may be sanctioned by the Department of Employment and Labour for failing to comply with the Code to the satisfaction of a labour inspector.   

 

The Code requires employers to conduct a risk assessment, based on the Hazardous Biological Agents (‘HBA’) regulations contained in the Occupational Health and Safety Act (OHSA), in respect of the risk of exposure to SARS-CoV-2 in the workplace, as well as the risk of severe illness or death as a result of such exposure. Thereafter, the employer must develop and implement a plan based on the outcome of the risk assessment, which must include the measures the employer intends to take in respect of mandatory vaccinations in the workplace.   

 

The risk assessment which employers are obliged to undertake, is entirely unrealistic, and impossible to implement and maintain.

 

NEASA will challenge the Minister’s attempt to justify a vaccination policy under the OHSA. While the OHSA regulates workplace safety in respect of risks that originate in the workplace, Covid-19 is not a problem confined to the workplace only and does not originate in the workplace. Therefore, interpreting the OHSA to protect employees against a hazard that does not originate from the workplace is absurd and could never have been the legislature’s intention.

 

It is also NEASA’s position that the OHSA neither affords the Minister the power, nor the employer the right, to limit constitutional rights via the vehicle of workplace safety.

 

Furthermore, it is our view, that the Code and its application to the OHSA infringe upon and restrict various constitutional rights, including the right to dignity, privacy, bodily integrity, the freedom of trade and occupation, freedom of conscience, freedom of religion, belief and opinion of the individual.

 

It is commonly accepted that the Covid-19 vaccines cannot meet the objective of preventing transmission and infection, that both vaccinated and unvaccinated persons spread the virus and become infected, and therefore this limitation of constitutional rights cannot be justified under the Constitution.

 

NEASA also points out that the majority of South Africans do not want to submit to any of the current vaccines, and that, in a democratic society, public policy should at least consider the citizen’s voice, especially when considering whether force and coercion should be applied.

 

It is submitted that there is no justice or morality in coercing an autonomous individual into receiving medical treatment against his will, especially where such treatment entails potentially severe consequences for the recipient thereof, and has not been proven to accomplish the goal for which the treatment is mandated.

 

Based on the above and numerous additional grounds, NEASA has launched an application in the Pretoria High Court, to the effect that:

 

 1. the Code of Practice to be declared ultra vires, unlawful, unconstitutional and be reviewed and set aside;

 

 2. certain sections of the Code, as far as it relates to the incorporation of the HBA regulations, be declared to be ultra vires, unlawful, unconstitutional and be reviewed and set aside;

 

 3.in the alternative to the above and if the Code is not reviewed and set aside, it be declared that:

 

• the Code neither confers any legal obligation upon nor imposes an obligation on employers to compel employees to submit to mandatory vaccination against SARS-CoV-2 and/or Covid-19; and
• an employer who fails or refuses to implement or enforce against an employee a scheme of mandatory vaccination, is not in breach of its duties to ensure a safe and healthy workplace; 

 

 4. it be declared that any scheme of mandatory vaccination, ostensibly authorising any private person or entity to compel an employee to vaccinate against SARS-CoV-2 under threat of loss of employment or under threat of any adverse change of employment conditions, and absent the voluntary and informed consent of the employee, is unconstitutional, unlawful and invalid;

 

 5. it be declared that no employment policy which is adopted in response to SARS-CoV-2:

 

• may exclude, derogate from or refuse to recognise and uphold an employee’s right to bodily integrity;
• may exclude, derogate from or refuse to recognise and uphold an employee’s right to make informed decisions regarding medical treatment;
• may exclude, derogate from or refuse to recognise and uphold an employee’s right to refuse to receive medical treatment, including vaccination against or for SARS-CoV-2, if so directed or recommended by an employer;
• may penalise, victimise or dismiss an employee for failing or refusing to receive specific medical treatment, including vaccination against or for SARS-CoV-2 directed or recommended by an employer;

 

 6. it be declared that the HBA regulations only find application in and is limited to circumstances where SARS-CoV-2 is deliberately or incidentally produced, processed, used, handled, stored or transported and not where it may be introduced to the workplace from the community at large or a similar exogenous source;

 

 7. it be declared that SARS-CoV-2 which is not deliberately or incidentally produced, processed, used, handled, stored or transported, and which does not arise out of or in connection with the activities of persons at work within the contemplation, scope and ambit of the OHSA, does not constitute a hazard to health and safety arising out of or in connection with the activities of persons at work within the contemplation, scope and ambit of the OHSA;

 

 8. section 2(1)(b) of the HBA regulations be declared:

 

• to be inconsistent with and ultra vires the OHSA, and accordingly invalid; and
• to be constitutionally unlawful, irrational and unreasonable, and accordingly, be reviewed and set aside.

 

NEASA will keep members abreast of developments.

 

For more information:

NEASA Media Department

media@neasa.co.za