The occupational health and safety obligations on employers in the workplace arising from COVID-19 – by Lisa-Anne King and Deneska Theron

As the country enters level 4 of the lockdown and many businesses reopen, business owners are uncertain as to their legal obligations in regard to their workplaces from an occupational health and safety perspective.

On 28 April 2020, the Minister of Employment and Labour published specific occupational health and safety measures which are to be adopted and implemented in workplaces in order to reduce the escalation of COVID-19 infections.

Whilst the directive stipulates measures that must be taken by employers in order to protect the health and safety of workers and members of the public who enter their workplaces, it is important to note that there is also a responsibility on employees to ensure that they comply with every measure that is introduced by their employers in accordance with the directive.

Social Distancing Measures

In accordance with Government issued Notice 43224, Regulation 459, no employer shall have more than one third of its normal workforce at its premises during the lockdown period. There are, however, certain industry specific exemptions.  For example certain businesses in the manufacturing and recycling industries are permitted to scale up to 50% employment subject to strict health protocols.  Coal production for Eskom as well as other mining and quarrying companies may scale up to full employment.  Despite the number of people present in the workplace all employers must adopt measures to promote social distancing amongst employees including enabling, wherever possible, employees to work from home. Furthermore, every employer must arrange the workplace to ensure minimal contact between workers and ensure that there is a minimum of one and a half metres between all workers while they are working.  If this is not possible the employer must arrange for physical barriers to be placed between work stations to create a solid physical barrier between workers.  If the above measures are not practical, the employer, at its own expense, must provide its employees with the appropriate personal protective equipment. Employers need to ensure that the social distancing measures are adhered to through supervision.  Measures, such as staggering break-times, can be implemented to avoid a concentration of workers in any of the common areas.

Alcohol-Based Hand Sanitiser and Hand Washing

Employers further need to ensure, at their own expense, that there are sufficient quantities of hand sanitiser, that has at least 70% alcohol content, to provide for the number of workers, or other persons, who access the workplace.  The hand sanitiser must be available at the entrance to the workplace.  Employees, who work away from the workplace, not including their homes, must be provided with an adequate supply of hand sanitiser for both the employees concerned and members of the public that the employees are required to come into contact with.  Employers must also ensure that there are adequate facilities for handwashing and that sufficient soap and paper towels are provided.  Employees must be required to wash and sanitise their hands regularly throughout the day.

It is the employer’s responsibility to ensure that all work surfaces are disinfected before work begins, during the working period, and after work ends.  All common areas, door handles, toilets, and shared electronic equipment need to be regularly disinfected.  Employers must either disable biometric systems or ensure that they are COVID-19 proof.

Cloth Masks and Other Personal Protective Equipment

The Department of Health requires all persons to wear masks in public spaces.  Employees must wear a mask at all times whilst at work as well as during their commute to and from work.  To ensure this, the Department of Health requires every employer, at its own expense, to provide each employee with a minimum of two cloth masks.  It may be economical for employers to consider purchasing washable face masks.  Employers must ensure that employees are informed and trained on the correct use of the cloth masks.

Measures To Protect Workplaces To Which The Public Has Access

Employers must require members of the public, as well as suppliers, to wear cloth masks whilst in their workplaces and can, where appropriate, display notices in such workplaces to inform members of the public of the precautions that they are required to observe.

Ventilation

There is a responsibility on all employers to ensure that workplaces are well ventilated either by natural or mechanical means and where reasonably practical to install a local extraction ventilation system with high-efficiency particulate air filters.  Employers further need to ensure that such filters are regularly cleaned, maintained, and replaced by a competent person in accordance with the manufacturer’s instructions.

Symptom Screening and Protocols

Employers must maintain symptom screening to ensure that employees are not infected with COVID-19.  They must actively take measures to screen all employees, at the time that they report for work, to determine whether they have any of the observable symptoms that are associated with COVID-19.  These symptoms include fever, shortness of breath, difficulty breathing, coughing or a sore throat.  The employer must further require all employees to immediately inform it if they are suffering from any of the following symptoms while at work; nausea, vomiting, diarrhoea, weakness, tiredness, fatigue, body aches, loss of smell, or loss of taste.

If an employee presents with any of these symptoms the employer must not permit that employee entry into the workplace.  If the employee has already entered the workplace, the following process needs to be followed immediately by the employer:

  • isolate and provide the employee with a surgical mask and arrange for the employee to be transported in a manner that does not place other workers or members of the public at risk;
  • assess the risk of transmission and disinfect the applicable area and the employee’s workstation;
  • ensure that the employee is tested for COVID-19;
  • refer those employees who may be at risk for screening and take any other appropriate measure to prevent possible transmission;
  • place the employee on paid sick leave in terms of section 22 of the Basic Conditions of Employment Act 75 of 1997 (BCEA).  If the employee’s sick leave entitlement is exhausted the employer must make an application for an illness benefit in terms of the directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme promulgated in terms of section 27(2) of the Disaster Management Act;
  • ensure that the employee is not discriminated against on grounds of having tested positive for COVID-19 in terms of section 6 of the Employment Equity Act 55 of 1998; and
  • if there is evidence that the employee contracted COVID-19 as a result of occupational exposure, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993.

Furthermore, if an employee has tested positive for COVID-19, the employer may only allow an employee to return to work on the following conditions:

  • the employee has undergone a medical evaluation confirming that the employee has been tested negative for COVID-19;
  • the employer ensures that personal hygiene, wearing of masks, and social distancing, is strictly adhered to by the employee; and
  • the employer closely monitors the employee for symptoms upon returning to work.

Administrative Measures

According to the directive, every employer must establish the following administrative measures:

  • employers, taking into account the specific circumstances of the workplace, must undertake a risk assessment to give effect to the minimum measures required by the directive;
  • an employer with more than 500 employees must, in accordance with section 7(1) of the OHSA, submit a record of its risk assessment together with a written policy concerning the protection of the health and safety of its employees from COVID-19 to:
    • its health and safety committee established in terms of section 19 of OHSA; and
    • the Department of Employment and Labour.
  • notify all workers of the contents of the directive and the manner in which it intends to implement it;
  • notify all employees that if they are sick or have symptoms associated with  COVID–19 that they must not come to work and are to take paid sick leave in terms of section 22 of the BCEA;
  • minimize the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures;
  • appoint a management compliance officer to address employee concerns and to keep employees informed.  In any workplace in which a health and safety committee has been elected the manager must consult with that committee on the nature of any hazard in that workplace and the measures that need to be taken;
  • give administrative support to any contact-tracing measures that are implemented by the Department of Health;
  • where reasonably practicable, place leaflets and notices in the workplace to inform workers of the dangers of the virus, the manner of its transmission and the measures to prevent transmission which include things such as personal hygiene, social distancing and the use of masks.  Employees must also be informed on where to go for screening or testing if they are presenting with symptoms;
  • if a worker has been diagnosed with COVID-19, an employer must:
    • inform the Department of Health and the Department of Employment and Labour;
    • investigate the cause, including any control failure, and review its risk assessment to ensure that the necessary controls and personal protective equipment requirements are in place.

Monitoring and Enforcing the Directive

The directive has placed numerous additional responsibilities on employers, who must adhere strictly to all of these requirements as health and safety inspectors have been ordered to monitor compliance.  Inspectors may perform any of their usual functions as designated in section 29 of OHSA and exercise any of their powers listed in section 30.

Furthermore, should an employer contravene or fail to comply with any of the further obligations contained in the directive it will constitute a contravention of an obligation or prohibition under OHSA and the offences and penalties provided for in section 38 of OHSA will apply.  These penalties include either imprisonment or a fine of up to R100 000.  The Labour Department has further stated that businesses which do not adhere to the strict new health and safety guidelines, which are intended to reduce the spread of COVID-19, will be shut down.

Conclusion

In order for South Africa’s economy to recover, there needs to be a phased reopening of businesses in order to allow for more employees to be able to return to work.  However, if these health and safety measures are not adhered to, the number of infections in South Africa will rapidly increase and this could potentially put South Africa back into a stage 5 lockdown.

Occupational health and safety measures have always been important; however, during this pandemic there is even more pressure on employers to ensure that they are cultivating safe and healthy working environments.