News / E-Bulletin
Jun 8,2020
by Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Thabisa Yantolo, Candidate Attorney
On 4 June 2020 the Minister of Employment and Labour, Thembelani Waltermade Nxesi, published, by way of Government Gazette, the ‘Consolidated COVID-19 Direction on Health and Safety in the Workplace’ (“Direction“). The Direction replaces the Direction published on 29 April 2020 (“Old Direction“). The Direction can be accessed at: http://www.labour.gov.za/DocumentCenter/Regulations%20and%20Notices/Regulations/Occupational%20Health%20and%20Safety/Directions%20for%20Health%20and%20Safety%20in%20the%20Workplace%20-%204%20June.pdf.
We have highlighted below some of the key developments and changes. In essence, the Direction maintains a number of the provisions in the Old Direction while making minor amendments, clarifications and further additions. The Direction makes reference to a number of guidelines which must be considered in conjunction with the Direction. The summary which follows deals with some of the major changes for employers employing more than 10 employees.
Vulnerable employees
A “vulnerable employee” is defined as an employee, as contemplated in the Department of Health Guidelines (“Department”),[1] with known or disclosed health issues or comorbidities or any other condition that may place the employee at a higher risk of complications or death than other employees if infected with COVID-19 or employees above the age of 60 years who are at a higher risk of complications or death if infected.
Every employer is obliged to take a number of administrative measures which include, among others, taking special measures to mitigate the risk of COVID-19 for vulnerable employees. These measures must be in accordance with the guidelines issued by the Department.[2]
Plans for reopening workplaces
The Directions require every employer who can operate to conduct a risk assessment and to develop a return to work plan based on that assessment.
The plan must include the protective measures in place for the phased return of the employees before opening. The employer must consult on the risk assessment and plan with –
The plan must be made available for inspection by an inspector and a person contemplated above. The plan must include:
The employer must phase the return of their employees to work in accordance with the plan.
Administrative measures
The Directions provide for administrative measures that the employer must establish. Below is a summary of some key additions to the Old Direction.
Addition of time period
The Old Directions provided that an employer who employs more than 500 employees must submit a record of its risk assessment and a written policy concerning the protection of the health and safety of its employees from COVID-19 as contemplated in section 7(1) of the OHSA to the Department of Employment and Labour. The Directions now also make it clear that these documents must be submitted within 21 days of the commencement of the Direction.[3]
Compliance officer
Every employer must appoint a COVID-19 compliance officer. The officer’s additional obligations are to:
The officer remains obliged to address employee or workplace representative concerns and to keep them informed and, in any workplace in which a health and safety committee has been elected, consult with that committee on the nature of the hazard in that workplace and the measures that need to be taken.
The requirements placed on the compliance officer are consistent with the provisions of the Regulations to the Disaster Management Act (“Regulations“) which require, among others, that a compliance officer must be appointed to “develop measures to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing measures for the public and service providers, as required.”
Closure due to infection
If a worker has been diagnosed with COVID-19, an employer must determine the need to temporarily close the affected work area for decontamination using an incident-based risk assessment with due regard to the Department of Health’s Guidelines.[4]
Health and safety measures
Surgical mask
If a worker presents with COVID-19 related symptoms or advises the employer of these symptoms, the Direction no longer specifies that a FFP1 surgical mask is required. The Directions now state that a surgical mask must be provided to the worker (which presumably can be a surgical mask other than a FFP1 mask).
Return to work after COVID-19 diagnosis
The Direction has added conditions on when a worker may return to work after they have been diagnosed with COVID-19. The conditions are as follows (new conditions are highlighted):
Worker has been in contact with COVID-19 positive worker in the workplace
If a worker has been in contact with another worker in the workplace who has been diagnosed with COVID-19, the employer must assess that worker’s exposure in accordance with the Department of Health’s Guidelines[5] to ascertain whether the exposure carries a high or low risk of transmission between the workers.
If there is a low risk of exposure, the employer:
If there is a high risk of exposure:
Measures in respect of workplace to which public have access
Depending on what is reasonably practicable given the nature of the workplace every employer must do the following (additions highlighted):
Refusal to work due to exposure to COVID-19
An employee may refuse to perform any work if circumstances arise which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19. The Direction regulates a number of issues flowing from any such action on the part of the employee including efforts to resolve the issues. Where an employee refuses to work there is an obligation on such employee to inform the employer. It also provides for certain protections for employees who utilise the right to refuse to work. These protections include the following:
Sector 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 to limit the spread of COVID‑19 in the sector including providing for those circumstances where a firm within the sector cannot stagger working hours or provide transport for its employees.
[1]http://www.nioh.ac.za/wp-content/uploads/2020/05/20_2020-V4.-Guidance-on-vulnerable-employees-and-workplace-accommodation….pdf
[2]http://www.nioh.ac.za/wp-content/uploads/2020/05/20_2020-V4.-Guidance-on-vulnerable-employees-and-workplace-accommodation….pdf
[3] It is still a requirement for the employer to submit the records to its health and safety committee established in terms of section 19 of OHSA.
[4] http://www.nioh.ac.za/wp-content/uploads/2020/05/guidelines_positive_worker_19_May_20.pdf
[5] http://www.nioh.ac.za/wp-content/uploads/2020/04/Guidance-for-symptom-monitoring-and-management-of-essential-staff-with-COVID-19-related-illness-final.pdf
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