Due to the global pandemic of coronavirus, extra safety measures and regulations have been put in place to curb the rising infection rate. These safety regulations have become imperative not only to our daily lives but for the health and safety plans employers are required to implement in terms of the occupational health and safety regulations, such as personal protective equipment (PPE) such equipment may include masks, gloves, goggles, face shields, and other forms of protective gear.
The South African government has recommended the use of a three ply cloth face masks (or surgical masks) primarily to limit the spread of germs to other people or nearby surfaces by containing your coughs and sneezes. It can also help you avoid touching your nose or mouth accidentally. To some extent, it may serve as a basic barrier against large droplets reaching your mouth or nose.
However, what is to be said for specific employers’ who require their employees to make use of n95 respirator masks. N95 respirator masks are much tighter than ordinary N95 surgical masks and cloth masks and as a result filter 95% of particles in the air, thereby reducing employees’ exposure risk to the coronavirus. In order to work effectively, N95 respirator masks require an adequate seal against the wearer’s face. When an employee has facial hair (a beard, moustache, sideburns or even stubble), it can compromise the N95 mask’s effectiveness, often rendering it useless. https://www.journalofhospitalinfection.com/article/S0195-6701(20)30008-6/pdf
The required usage of the N95 respirator masks are commonly associated with the healthcare industry, but the usage thereof poses conflicting views in terms of specific religious groups such as certain sects of Islam, Sikhism and Judaism where beards and facial hair are a significant component of the observance of faith. Is the required use of N95 respirator masks by employers to these groups of employees not a direct infringement on their constitutional right to religion?
Section 15 of the South African Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa), everybody has the right to freedom of conscience, religion, thought, belief and opinion. Section 9(3) of the Constitution prohibits discrimination on the grounds of religion. However, the Constitution does have the limitation clause, Section 36 and such rights may only be limited by a law of general application and, to the extent that this limitation is reasonable and justifiable in an open and democratic society.
It still remains the employer’s responsibility to ensure a safe working environment for their employees as well as those affected by their activities under the Occupational Health and Safety Act 1993. This must be complied with as far as is reasonable. An important principle to consider when balancing the employer’s and employee’s rights is that of ‘reasonable accommodation’. This principle was discussed by the Constitutional Court in the case of MEC for Education, Kwazulu-Natal and others v Pillay, in which a Durban school refused to allow a pupil to wear a nose stud, even though doing so formed part of her religious practices as a Hindu. In this case, the court states:
‘The concept of reasonable accommodation is not new to our law – this Court has repeatedly expressed the need for reasonable accommodation when considering matters of religion.’
The court held that one must take proactive measure and possibly incur additional hardship or expense in order to allow all people to participate and enjoy their rights equally.
This is an issue that crosses the borders of South Africa, as this issue has recently dealt with by the Canadian courts in the matter of in Singh c. Montréal Gateway Terminals Partnership 2019 QCCA 1494. Three Sikh employees sued a third-party federally-regulated employer for allegedly discriminating against them and infringing on their religious freedom by forcing them to wear a hard hat. The employees considered themselves unable to wear the hard hat due to the turbans their Sikh faith required.
In the judgement, the Court of Appeal fully endorsed the trial decision. The province’s highest court stressed the employee’s duty to actively participate in the search for a solution with regard to accommodation. The court also reiterated the importance for employers to ensure the health and safety of their employees and of third parties circulating on their premises. These obligations prevail over infringement on religious freedom, the adverse effects of which are only temporary and time-limited in this case.
In the matter of TDF Network Africa (Pty) Ltd v Faris, the Labour Appeal Court reiterated that employers must ‘exert considerable effort in seeking reasonable accommodation’ and that ‘the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.’
During this uncertain time within not only our country but the world, it is recommended to have open and clear lines of communication between employees and employers. The fundamental principles of a successful working relationship are through trust and communication. This may help employees have a better understanding of the legal implications and constraints employers must adhere to in terms of the health and safety protocols. It may also allow the employer an opportunity to express its understanding of and respect for the employees’ religious practices. Each situation is different and must be evaluated based on all the facts and circumstances involved.
Article by: Preshalia Pandaram
Dispute Resolution Official – Pretoria