Consolidated Covid-19 Direction on Health and Safety in the Workplace – The latest changes and what they mean for employers – by Jaime Myhill

As of 1 June 2020, South Africa was moved down to lockdown level 3, which opened up a significant portion of the economy given that approximately 8 million people would be returning to work as the restrictions are eased. Employers were able to prepare for the opening up and safe return of employees to the workplace through the Covid-19 Occupational Health and Safety Measures in Workplaces (OHS Directive). However, on 4 June 2020, Government repealed the OHS Directive and replaced it with the Consolidated Covid-19 Direction on Health and Safety in the Workplace (the Consolidated Directive) which, while largely similar to the former OHS Directive, is materially different in certain respects.

Vulnerable Employee
Unlike the former OHS Directive, the Consolidated Directive now formally defines a vulnerable employee as any employee with health issues or any condition that places them at a greater risk of complications or death if infected with Covid-19. In addition to this, all employees older than 60 will be classified as vulnerable employees.

Furthermore, Annexure A of the Consolidated Directive offers some much needed guidance to employers on the special measures that need to be implemented in the workplace to accommodate and assist vulnerable employees. These measures include, placing vulnerable employees in protective isolation, stricter social distancing protocols, additional PPE, limiting exposure to the public and other employees and exploring the option of working from home, where appropriate.

Workplace Plan
Much like the former OHS Directive, the Consolidated Directive requires all employers, regardless of the size of their workplace, to undertake a risk assessment and formulate a workplace plan. In this regard, the Consolidated Directive sets out more specifically the particular aspects which need to be included in the plan.

It provides for consultation in respect of the workplace plan with representative trade unions, any workplace health and safety committee that has been established or any workplace health and safety representative. In addition to this, the plan should be made available for inspection by an Occupational Health and Safety Act representative.

The plan should cover, amongst other things, when the workplace will open, its operating hours, which employees will be returning to the workplace, identify vulnerable employees in order to be in a position to take special measures to mitigate the risk of infection, set out all workplace protective measures, including screening for employees and the public, and disclose the compliance officer who will enforce and supervise adherence to the workplace plan. 

Covid-19 in the Workplace
The Consolidated Directive contains detailed protocols that must be followed in the event of a Covid-19 diagnosis or suspected Covid-19 diagnosis in the workplace. When an employee is diagnosed with Covid-19, the Consolidated Directive, in addition to that previously required by the OHS Directive, obliges the employer to have due regard to the Department of Health’s Guidelines on Covid-19 positive employees and determine whether the affected work area should be closed to allow for decontamination.

Furthermore, the Consolidated Directive no longer permits employers to force employees displaying Covid-19 related symptoms to be tested. Instead, the employer may send the employee home and place them on sick leave, alternatively, if sick leave is exhausted, apply for the illness benefit on behalf of the employee in terms of the Covid-19 Temporary Employer Relief Scheme (C19 TERS).

Where an employee has been diagnosed with Covid-19, they may only return to the workplace once they have been isolated for 14 days, have undergone a medical evaluation confirming fitness to work, all protective measures are adhered to, the employee is closely monitored for recurrence of symptoms and the employee wears a surgical mask for 21 days from the date of diagnosis. An employee is no longer required to provide a medical certificate confirming that he/she is Covid-19 negative before returning to work. Furthermore, where an infected employee has been in contact with another employee, the employer must, in accordance with the Department of Health’s Guidelines on symptom monitoring and clinical management of suspected or confirmed Covid-19, determine whether there is a low or high risk of transmission. In instances of low risk exposure, the employer may permit the employee to continue working, subject to close supervision. However, in instances of high risk exposure, the employee must be quarantined for 14 days and placed on sick leave.

Refusal to Work
Probably the most significant change in the Consolidated Directive is the inclusion of the clause allowing employees to refuse to work in circumstances where, with reasonable justification, it appears to the employee that there is a serious and imminent risk of exposure to Covid-19. Employees wishing to exercise this right must immediately inform their employer of their decision and reasoning, to allow the employer to consult with the employee and endeavour to resolve any issues the employee may be experiencing.

Employees can exercise this right regardless of whether they have exhausted any internal processes. Furthermore, no employee refusing to work under this clause, may be disadvantaged in any way, including, having their salary deducted, disciplinary action or any other prejudicial treatment being taken against them by the employer. If there is any dispute as to compliance with the clause, the employee has the right to refer a dispute to the CCMA or accredited bargaining council for conciliation and arbitration in accordance with Section 191 of the Labour Relations Act 66 of 1995.

With the significant opening up of the economy under lockdown level 3 and the expected rise in Covid-19 infections, it is imperative to ensure that all health and safety precautions and protocols are adhered to in the workplace. Businesses struggling to cover the cost of employees’ salaries due to their closure or partial closure over the lockdown period, are encouraged, and in fact obliged, to claim C19 TERS on behalf of their employees. The latest amendments to C19 TERS now allow employees to claim on their own behalf when their employer refuses to claim for them and even allows employees to claim in instances where their employer has failed to register them with the UIF or keep up to date with UIF payments. Thus, it is only through the cooperation of employers and employees that businesses, workers and South Africa as a whole, will emerge from the devastating effects of Covid-19.