Experts baffled by new Covid rules

• Proposed changes to health regulations published • Nxesi closes vaccine mandate loophole

As the government races to devise new measures for managing the coronavirus pandemic in order to lift the national state of disaster, health minister Joe Phaahla has released a slew of proposed changes to current health regulations, some of which have left experts baffled.

At the same time, labour & employment minister Thulas Nxesi published a new code of conduct for managing Covid-19 in the workplace, reaffirming employers’ rights to introduce vaccine mandates and tightening the grounds on which employees may refuse to get jabbed.

The government is under growing pressure to end the state of disaster because it has been used to implement sweeping restrictions that have not been subject to parliamentary oversight. Earlier this week, it was extended until April 15.

First brought into play two years ago as Covid-19 reached

SA, the state of disaster may last beyond mid-April, Business Day reported on Wednesday, as the government grapples with formulating alternative legislation that will give it the flexibility it needs to manage a major health threat.

The health minister’s proposed regulatory changes cover rules for the size of gatherings, social distancing, quarantine and isolation, funerals, travel in and out of SA, and the handling of dead bodies. They are contained in amendments to three sets of regulations to the National Health Act and amendments to regulations to the International Health Regulations Act, published in the Government Gazette on March 15. The public has 30 days to comment.

While the health department said the changes are intended to provide the government with the tools to manage Covid-19 and other notifiable diseases, independent sources told Business Day it is unclear how

restrictions will be tightened or loosened, and which aspects are specific to Covid-19. They also highlighted inconsistencies in the proposed changes to the regulations relating to the surveillance and control of notifiable medical conditions, which limit funerals to 100 people but permit indoor gatherings of up to 1,000 people.

Nxesi published the Code of Practice for Managing Exposure to SARS-Cov-2 in the Workplace, which comes into immediate effect when the state of disaster ends.

It takes the rights and obligations of employers and employees, which were set out in a set of rules Nxesi implemented in terms of regulations to the Disaster Management Act, and makes them rights and obligations under the Labour Relations Act instead.

However, the new code goes a step further, strengthening the rights of employers to request the vaccination status of employees, said Jacqui Reed, senior associate at law firm Herbert Smith Freehills.

CONSTITUTIONAL RIGHTS

They also limit the grounds employees can use to refuse to get vaccinated, and only medical conditions will be regarded as justifiable.

“These regulations are trying to deal with the arguments that have come up in recent CCMA cases,” she said, referring to the Commission for Conciliation, Mediation and Arbitration.

The CCMA has upheld the decisions of several employers to suspend or dismiss employees who refuse to get vaccinated or take weekly tests. Among the arguments used by the employees were their constitutional rights to bodily integrity and unfair discrimination on religious grounds, said Reed.

The government has yet to

publish regulations to the Social Assistance Act, which are required to ensure the continuation of the R350 social relief of distress grant.

Wits governance expert Alex van den Heever said only the Social Assistance Act regulations are necessary to lift the state of disaster. “There is no need to maintain the state of disaster until these regulations are finalised. If needed, the state of disaster can always be reinstated if the situation genuinely demands it.”

The government has been fiercely criticised by opposition parties for its continued use of the Disaster Management Act and faces a legal challenge from trade union Solidarity and civil rights organisation AfriForum.

On Wednesday, UDM leader Bantu Holomisa said the party will join AfriForum’s legal action, challenging the constitutionality of the extension of the state of disaster. “The sport, tourism and hospitality industries must be relieved,” he said on Twitter.

Earlier this week, Western Cape premier Alan Winde, who has for months been calling for an end to the state of disaster, condemned the latest extension. “We no longer need a disaster act declaration to manage the pandemic, and we need to normalise our response through existing legislation,” he said.