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Health|Infrastructure|Mining|PPE|Safety|Screening|Service|Systems|Testing|transport|Equipment|Infrastructure|Operations
Health|Infrastructure|Mining|PPE|Safety|Screening|Service|Systems|Testing|transport|Equipment|Infrastructure|Operations
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As firms reopen and pandemic lingers, health and safety obligations rise

FIRST LINE OF DEFENCE Social distancing, hand washing and masks to become the norm during the pandemic

Photo by Bloomberg

CELESTE COLES For Covid-19 to be viewed as occupationally acquired, infection must have arisen during the course and scope of an employee's employment

FIONA LEPPAN These measures are issued in terms of directives and regulations, which carry the force of the law

KATE COLLIER The measures should be underpinned by a moral and social recognition of all South Africans to do their part

PIETER COLYN An employee must take reasonable care for their own health and safety and that of other persons

WARREN BEECH Employees who withhold pertinent information, can be subjected to disciplinary action, including dismissal

15th May 2020

By: Nadine James

Features Deputy Editor

     

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By now, most people are aware of measures prescribed by the World Health Organisation to help prevent the spread of Covid-19. However, given the phased reopening of the South African economy, it is prudent to consider the health and safety protections afforded employees through existing legislation, as well as the legal obligations of employers.

“In terms of both the Occupational Health and Safety Act (OHSA) and the Mine Health and Safety Act (MHSA), employers’ responsibilities regarding the physical wellbeing of their employees are not absolute – the responsibilities are qualified with reference to ‘reasonably practicable steps’,” notes Eversheds Sutherland mining and infrastructure head Warren Beech.

Cliffe Dekker Hofmeyr employment law director Fiona Leppan elaborates: “In light of the pandemic, reasonably practicable steps would entail balancing the possibility that, if these steps are not acted upon, an employer may be found wanting or potentially liable for the consequences thereof.”

“The point of departure is for an employer to conduct a detailed risk assessment, taking into account its various operations, sites and work conditions, and thereafter to determine appropriate measures to prevent, as far as reasonably practicable, the transmission of Covid-19 to employees in a workplace,” adds Webber Wentzel employment, health and safety partner Kate Collier.

“The capacity of the staff present in the workplace may be significantly reduced to avoid close contact among employees. Further, employers would need to ensure that employees are screened regularly, that surfaces and work areas are sanitised regularly, and that the necessary personal protective equipment (PPE) is provided where the particular risks of infection cannot be adequately controlled in their absence,” says Leppan.

ENSafrica mine and occupational health and safety director Celeste Coles cites specific measures stated in regulations issued on April 29 in terms of the Disaster Management Act, as well as in the Department of Employment and Labour’s (DEL’s) directive, published on April 30, adding that measures in the directive will remain in force for the duration of the declared national disaster, or until repealed or amended.

Prevention is Better than Cure

In terms of the regulations, employers are required, amongst others, to adopt measures in respect of social distancing, implement Covid-19 workplace plans and designate a Covid-19 compliance officer.

In accordance with the directive, every employer must conduct a risk assessment and implement appropriate measures to give effect to the directive, with companies with more than 500 employees required to submit risk assessments and Covid-19 policies to internal health and safety committees and the DEL.

Employers must comply with any guidelines issued by the Department of Health (DoH), in consultation with the DEL, regarding symptom screening, medical surveillance and testing.

Workers must be screened when reporting for work to determine whether they have any of the symptoms associated with Covid-19, including a fever, a cough, a sore throat, red eyes and/or difficulty in breathing.

Further, every worker must immediately report if they experience any of the symptoms, so that appropriate action can be taken.

Employers must also notify employees of their plans in terms of the directive, and must ensure the measures are adhered to through monitoring and supervision.

This supervision should extend to common areas outside the immediate workplace through ‘queue control’ or in places such as canteens and toilets to avoid the concentration of workers.

In addition to reducing the number of workers at the workplace, employers must ensure that there is a minimum of 1.5 m between workers while they are working. Failing this, employers must arrange for physical barriers to be placed between or on workstations, or supply employees with appropriate PPE.

Moreover, employers must ensure that there are sufficient quantities of hand sanitiser, comprising at least 70% alcohol content. Employees who work away from the workplace, excluding those working from home, must also receive an adequate supply of sanitiser.

All work surfaces and equipment are to be disinfected before, during and after work. Common areas, door handles, and shared electronic equipment must be regularly disinfected.

The DoH requires that all persons wear cloth masks in public. Thus, every employer must provide each of its employees with a minimum of two cloth masks that comply with the guidelines issued by the Department of Trade, Industry and Competition.

The directive calls for employers to either disable biometric systems or make them Covid-19-proof. ENSafrica mine and occupational health and safety HOD and director Pieter Colyn adds that, while not explicitly referenced in the directive, breathalysers should either be properly sanitised after each use or, “if the effectiveness of the sanitisation is doubtful”, temporarily suspended, with increased focus on sensory monitoring of employees for signs of intoxication.

The directive notes that information on the dangers of the virus, its transmission, measures to prevent transmission and where to go for screening or testing needs to be displayed or distributed by employers.

Further, every employer must regularly check the websites of the DoH, the National Institute for Communicable Diseases (NICD) and the National Institute for Occupational Healthto see whether any additional PPE is required or recommended for a specific workplace or profession.

In the Event of Infection

The directive states that employers must not permit a worker to enter the workplace or report for work if the employee displays or reports Covid-19 symptoms.

If the worker is already at work, employers must immediately isolate the worker, provide him or her with a FFP1 surgical mask and arrange for transport that will not place other workers or members of the public at risk, enabling the employee to either self- isolate or receive testing.

The employer must also disinfect the area and the employee’s workstation, refer those workers who may be at risk for screening, and take any other appropriate measures to prevent possible transmission.

If a worker has been diagnosed with Covid-19, an employer must inform the DoH and the DEL, investigate the cause of infection, and review its risk assessment to ensure that the necessary controls and PPE requirements are in place.

Further, the employer must provide administrative support for any contact-tracing measures implemented by the DoH.

Employees diagnosed with Covid-19 and isolated in accordance with the DoH guidelines may only return to work if they have undergone a medical evaluation confirming that they have tested negative for Covid-19, they continue to strictly adhere to the hygiene, mask and social distancing requirements and the employer closely monitors the worker for symptoms on return to work.

If an employee is infected, he or she must be placed on paid sick leave in terms of the Basic Conditions of Employment Act (BCEA). If sick leave has been exhausted, employers must apply for an illness benefit in terms of Clause 4 of the Covid-19 Temporary Employer Relief Scheme.

Further, the directive states that, if there is evidence that the worker contracted Covid-19 as a result of occupational exposure, a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA), in accordance with Notice 193, can be lodged.

Collier explains that detailed steps for employers and medical service providers are set out in the gazette and that this bespoke process is required because occupationally acquired Covid-19 is not an occupational disease. “Allowance has been made for existing forms to be used in conjunction with forms dealing specifically with exposure to Covid-19, which must be completed by the employer,” she adds.

Coles adds that, in terms of COIDA, an employer will be indemnified against an action for damages by an employee in circumstances where an employee contracts Covid-19. For Covid-19 to be viewed as occupationally acquired, infection must have arisen during the course and scope of an employee’s employment.

Complications and Consequences

“It is important to note that, in both the OHSA and the MHSA, an employee must take reasonable care for their own health and safety and that of other persons. “Accordingly, all employees must be encouraged to be forthcoming to protect not only their health and safety but also that of fellow employees,” Colyn stresses.

However, Beech notes that not all employers can afford to pay employees while they are under quarantine or in self-isolation, and that this may result in people attempting to enter or remain in the workplace, despite suspecting that they are Covid-19 positive. He also emphasises that employees who refuse to participate in measures stipulated in terms of the directive, or those who do not inform their employers of pertinent information, can be subjected to disciplinary action, including dismissal.

He adds that, if an infected person deals with third parties, the employer of the relevant employee could be exposed to prosecution for contravention of the DMA regulations, but only if the employer knew about the positive status of the relevant employee, or did not take reasonable measures to ensure that the status of the employees is ascertained.

Coles adds, for a person to successfully institute an action for damages against an employer, it must be demonstrated that the employer acted in a negligent and unlawful manner, thus causing damage to the claimant.

All five respondents stress that an employer that does not implement any measures will be viewed as negligent.

“These measures are issued in terms of directives and regulations, which carry the force of the law in light of the pandemic and national state of disaster. They can therefore be said to be legal obligations,” states Leppan.

She cites items 42 to 44 of the directive, noting that Item 42 states that an inspector designated in terms of Section 28 of the OHSA may monitor compliance. Item 43 adds: “In so far as any contravention of this directive constitutes a contravention of an obligation or prohibition under OHSA, the offences and penalties provided for in Section 38 of OHSA apply.”

Finally, Item 44 notes that an inspector may “for the purpose of promoting, monitoring and enforcing compliance with the OHSA, advise employees and employers of their rights and obligations in terms of this directive in accordance with Section 64 of the BCEA”.

“There are legal consequences for employers who fail to comply with the directive’s health protocols. Given the severity of the pandemic and its implications, employers may even risk losing their licenses to trade or expose themselves to criminal liability where the statutory prescripts are ignored,” Leppan clarifies.

Collier adds that, barring the legal aspect, the measures should be “underpinned by a moral and social recognition of all South Africans to do their part, where they can, to prevent the spread of Covid-19 and the moral imperative of employers to protect the health and safety of employees while at work”.

Beech says that, should the state of disaster be revoked, employers will need to reassess their workplaces using the risk-based approach and, depending on information available at that time, elect to continue with the same measures or implement less stringent measures, depending on the risk profile.

South African employers will be seeking guidance from the DoH and the NICD, as well as continuously keeping track of developments relating to Covid-19. “Depending on this, the application of these measures will, in all probability, be terminated on a gradual basis. It will not be an overnight scenario where, for example, all measures are terminated,” adds Colyn.

Regarding whether these measures must continue indefinitely, based on the assumption that the virus may return after the regulations and directives are repealed, Coles notes that, “should the risk of the Covid-19 virus be significantly diluted, if, for example, a vaccination is discovered, then it is not reasonably practicable for an employer to continue to apply these measures on the basis that it may resurface at some unknown time”.

Edited by Martin Zhuwakinyu
Creamer Media Senior Deputy Editor

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