Smile! The mask-wearing regulation has been repealed

• South Africa

• Employment law

24-06-2022

Masks – the little piece of material that has divided many. Though some have come to love these “new” fashion accessories which allow us to hide our expressions or save some time doing make up in the mornings, others have grown to loathe this little piece of material which seems to serve no purpose other than to fog up glasses or result in frantic searches of every conceivable pocket in a desperate attempt to avoid the embarrassment of being denied entry to your local shopping center.

However, on 22 June 2022, the Minister of Health published a notice in the government gazette in terms of which the mask-wearing regulation, which had initially been implemented in an effort to curb the spread of Covid-19, was repealed “in its entirety”.

The mask-wearing mandate was initially mandated by the Minister of Cooperative Governance and Traditional Affairs under the Disaster Management Act 57 of 2002. When the state of disaster was revoked on 5 April 2022, the mask-wearing requirement remained in force by virtue of regulations issued in terms of the National Health Act 61 of 2003.

Therefore, employers were saddled with a duty to monitor compliance with this requirement and ensure that their workforce wore facemasks when attending at the workplace. A task which would have proven cumbersome given the Covid-19 fatigue faced by many individuals in the country. With this requirement having been done away, employers are relieved of this obligation.

So, how should employers approach their employees’ varying decisions either to wear or not wear masks at the workplace? Generally speaking, and in the absence of a policy stating otherwise, employers will need to accept the personal decision made by their employees as to whether they intend on wearing a mask to the workplace. Irrespective of their employees’ decisions, employers should encourage employees to respect one another’s views and continue to apply other preventative measures insofar as Covid-19 is concerned.

Despite the above, employers may still be able to implement policies mandating the wearing of facemasks in an effort to ensure health and safety in the workplace, provided that such a policy is fair and reasonable. What the courts will regard as fair and reasonable following the repeal of the regulations, however, remains to be seen.