COVID-19: AMENDED CONSOLIDATED OCCUPATIONAL HEALTH AND SAFETY DIRECTION

The Minister of Employment and Labour published a consolidated COVID-19 Direction on Health and Safety in the Workplace on 4 June 2020. This replaces the Direction that was published on 28 April 2020.

The Consolidated Direction recognizes that there are sector-specific measures that need to be taken into account, and accordingly provides for sector guidelines to supplement the Direction.

The Direction does not apply to a workplace in respect of which another Minister has issued a direction under the Regulations dealing with health and safety, or to a workplace that is excluded from the Occupational Health and Safety Act, 1993, as amended (OHSA) in terms of section 1(3) thereof. Section 1(3) lists mines, mining areas or works in terms of the Minerals Act, 1991, as amended, and ships, boats or cranes in terms of the Merchant Shipping Act, 1951, as amended.

Sectoral protocols and guidelines

Sectoral or industry associations must, in the event of high health risks, develop sector-specific health protocols in consultation with the Department of Health. The purpose of the guidelines is to limit the spread of the COVID-19 virus and must provide for those circumstances where a firm in the sector cannot stagger working hours or provide transport to the employees.

Worker obligations

Workers must comply with their obligations in terms of OHSA to ensure safe and healthy work environments, as well as the measures introduced by their employers as required in terms of the Direction.

Employers with 10 employees or less

Employers with 10 employees or less must conduct a risk assessment, and must take the following measures:

• develop a basic plan for phasing in the return of its employees, taking into account those who are able to work remotely, those who are 60 and older, and those who have comorbidities;
• arrange the workplace to ensure that employees are at least 1.5 meters apart, or, if this is not practicable, place physical barriers between them to prevent the possible transmission of the virus;
• ensure that employees who present with COVID-19 symptoms are not permitted to work;
• immediately contact the COVID-19 hotline (0800 02 9999) for instruction, and direct the employee to act in accordance with those instructions;
• provide cloth masks or require the employee to wear some form of cloth covering over their mouth and nose while at work;
• provide each employee with hand sanitisers, soap and clean water to wash their hands, and disinfectant to sanitise their workstations;
• ensure that each employee, while at work, washes her/ his hands with soap and water or sanitises her/ his hands;
• ensure that the workstations are disinfected regularly; and
• take any other measures indicated by a risk assessment of the workplace, including such measures as are appropriate if the public have access to the workplace.

More than 10 employees

The measures that must be taken by employers with more than 10 employees are set out in the table that can be accessed here.

Refusal to work due to exposure to COVID-19

An important addition to the Direction is the inclusion in clause 49 of an employee’s right to refuse to work if circumstances arise which, with reasonable justification, appear to the employee or a health and safety representative to pose an imminent and serious risk of exposure to COVID-19.

An employee who refuses to work in these circumstances, must as soon as is reasonably practicable, notify the employer (personally or through a health and safety representative) of the refusal and the reason for the refusal. The employer must consult with the compliance officer and the health and safety committee, and must endeavour to resolve the issue that gave rise to the employee refusing to work.

No person may:

• advantage or promise to advantage a person for not exercising her/ his right in terms of clause 49; or
• threaten to take any action against a person for exercising (or intending to exercise) the rights in clause 49.

No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work in terms of clause 49.

If there is a dispute as to whether clause 49 has been contravened, the employee may refer the dispute to the CCMA or an accredited bargaining council for conciliation and arbitration. If the arbitrator finds that an employee was dismissed, disciplined, prejudiced or harassed for exercising her/ his right ito clause 49, the arbitrator may make an appropriate order contemplated in section 193 and 194 of the Labour Relations Act, 1995, as amended, which includes reinstatement and compensation, where appropriate.

Vulnerable employees

Vulnerable employees are those who are above the age of 60 who are at a higher risk of complications or death if infected, and those with known or disclosed health issues or comorbidities or any other condition that may place that employee at a higher risk of complications or death than other employees if infected with COVID-19.

The Department of Health Guideline lists the following comorbidities:

• Chronic lung disease
• Moderate to severe asthma
• Chronic obstructive pulmonary disease
• Bronchiectasis Idiopathic pulmonary fibrosis
• Active TB and post-tuberculous lung disease (PTLD)
• Diabetes (poorly controlled or with late complications)
• Moderate/ severe hypertension (poorly controlled or with target organ damage)
• Serious heart conditions, including heart failure, coronary artery disease, cardiomyopathies pulmonary hypertension and congenital heart disease
• Chronic kidney disease being treated with dialysis
• Chronic liver disease including cirrhosis
• Immunocompromised as a result of cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV/ AIDS, prolonged use of corticosteroids and other immune weakening medications

Employees who are severely obese (with a body mass index of 40 or higher), and who are more than 28 weeks pregnant (especially if with one of the health issues or comorbidities above) are also regarded as vulnerable employees.

Employers must take special measures to mitigate the risk of COVID-19 for vulnerable employees in accordance with the Department of Health Guidelines to facilitate their safe return to work. These Guidelines provide, inter alia, as follows:

• The employee should be assessed by her/ his treating doctor. If the employee cannot afford such costs, the employee must be assessed by a doctor at the expense of the employer, and preferably one with insight into the workplace and its processes.
• The doctor should provide a confidential note to the employer indicating the presence of comorbidities, without specifying the diagnosis.
• The doctor should ensure that the employee’s health condition is fully optimized, which may include recommending flu vaccinations, INH prophylaxis, continuous advice on maintaining compliance with treatment plan, ensuring that the employee has adequate supply of chronic medication for up to six months, advising the employee not to delay getting emergency care for the underlying condition, advising the employee to maintain ongoing health consultations if s/he has have concerns, and ensuring that the employee has access to psychological support for new onset or exacerbations of exiting mental illness.

Employers should have a clear and transparent policy and appropriate procedures to address the specific needs of vulnerable employees. These are in addition to the normal workplace risk control measures that apply to all employees (such as the provision of cloth masks, hand sanitiser, limitation of face-to-face meetings and ensuring social distancing and adequate space). The special measures should take into account the individual circumstances of the employee in relation to her/ his work environment and activities.

If potential exposure cannot be eliminated or reduced, the employer should explore other ways of temporary workplace accommodation to prevent the risk of infection. These may include alternative temporary placement/ redeployment to a role that has a negligible risk of transmission; restriction of certain duties; protective isolation in the form of a dedicated, clean office; provision of specific PPE appropriate to the risk of the task/ activity identified in the risk assessment; stricter physical distancing protocols; and limits on the duration of close interaction with clients, colleagues and/ or the public.

If these steps are not possible, consideration should be given to allowing the employee to work from home.

If workplace accommodation is not possible, temporary incapacity might be motivated by the treating doctor/ occupational practitioner. If this is not possible, the employee should be permitted to use her/ his sick leave, if appropriate. Should sick leave be exhausted, the employee should be permitted to utilize accrued annual leave; and in appropriate circumstances, an application for benefits from the UIF may need to be made.

If a vulnerable employee contracts COVID-19, such employee should only return to work if a fitness to work medical evaluation has been performed to assess the presence and degree of clinical deficits.

Contraventions

A contravention of the Direction places the employer at risk of enforcement proceedings under OHSA, and the offences and penalties set out in section 38 of OHSA will apply. Labour inspectors are tasked with the monitoring of compliance with this Direction and may attend at workplaces for this purpose.