What risk mitigation efforts should the prudent employer take before employees return to the workplace?
The Occupational Health and Safety Act of 1993 (“OHSA”) places a general duty on employers to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to its employees. The OHSA places a corresponding duty on employees to take reasonable care to safeguard their own health and safety.
South Africa has adopted a five stage phased approach to dealing with the national lockdown. Each stage (Alert Level) permits varying operation of business, with Alert Level 5 being the most restrictive. As of 21 September 2020, the country was placed under in Alert Level 1 which is the least restrictive level. However, the country experienced a surge in infections and various metros and districts were identified as areas with high infection rates (so-called ‘hotspots’), including Cape Town and Johannesburg. The country was placed under Adjusted Alert Level 3 on 29 December 2020 in terms of section 27(2) of the Disaster Management Act, 2002. The hotspot areas are subject to further restrictions. On 1 February 2021, the Adjusted Alert Level 3 regulations were further amended. The country has been placed under Alert Level 3 until 15 March 2021, pending further announcements by the President.
The Disaster Management Act Regulations (“Regulations”) were most recently updated on 13 February 2021 to include the applicable restrictions during Adjusted Alert Level 3. The COVID-19 Health and Safety in the Workplace Directive (“Directive”) dated 1 October 2020 is still in force and will be for the duration of the national state of disaster unless specifically repealed by the Minister of Employment and Labour. The Directive sets out the obligations on employers to conduct a risk assessment and, on the basis of that assessment, develop and implement a workplace plan outlining the measures to be implemented for the phased return to work of its employees and the workplace controls to mitigate the risk of transmission at the workplace.
In conducting a risk assessment, employers are required to identify:
- Whether its workplace, and the nature of each job within the workplace, would constitute a very high, high, medium or low exposure risk to the exposure of COVID-19; and
- Whether any of its employees are at particularly high risk i.e. if they are 60 years old or older and/or have comorbidities that would place them at higher risk of complications or death if infected (“vulnerable employees”).
Employers are required to consult on the risk assessment and plan with any representative trade union, any health and safety committee or, in the absence of a committee, a health and safety representative or employee representative. The plan must also be made available for inspection.
In drafting and implementing a workplace plan, employers must address:
- The special measures to be implemented in respect of vulnerable employees;
- Screening and testing protocols;
- Provision and use of personal protective equipment (PPE);
- Social distancing and hygiene measures;
- Training of employees and designating an employee as a compliance officer;
- Protocols for instances where employees display symptoms or test positive for the virus; and
- Protection of symptomatic or diagnosed employees from unfair discrimination and victimization.
Employers with over 50 employees must submit a record of its risk assessment, together with a written policy addressing the protection of the health and safety of its employees, to its health and safety committee established in terms of Section 19 of OSHA and to the Department of Employment and Labour.
Certain sectors have published sector specific workplace plans which employers must comply with.
Who should be involved in the decisions to return to the workplace?
Generally, senior management (the CEO or head of the institution, operations managers, senior HR executives, team leaders and internal legal counsel) will be consulted in relation to commencing the phased return to work. Whether employees will be required to return to work will depend largely on the nature of the business, the nature of the employee’s duties, and whether the employee is able to work remotely. Employees over the age of 60 and those with comorbidities should be consulted with to determine whether the employee is capable of returning to the workplace and whether there are any special measures that may be effected by the employer to reduce the potential risk of infection in relation to these employees.
What can the prudent employer do to ensure physical distancing in terms of the work space?
The Regulations provide that employers must arrange the workplace in a manner that ensures minimum contact between employees and must, as far as reasonably practicable, ensure a distance of one and a half meters between workers at all times. Where it is not practicable to rearrange the workplace to ensure minimal contact, employers are required to install physical barriers between workstations or, where necessary, provide employees with sufficient PPE based on the risks associated with their specific job types.
Significantly, clause 34(7) of the Adjusted Regulations provides that a business will be guilty of an offence if its premises exceed the maximum number of customers and employees and, if convicted, will be liable to a fine or imprisonment not exceeding six months. Note that there is no specific number of customers and employees permitted – but this is based on the spacing requirements as set out above.
In order to maintain social distancing, the Regulations and the Directive require employers to:
- Measure the area of their floor space to determine the maximum number of persons to be allowed at the workplace at any given time;
- Re-configure work-stations;
- Regulate use of common areas such as staff canteens and locker rooms;
- Erect physical barriers where necessary and practicable;
- Provide PPE such as cloth face masks, face shields and aprons; and
- Ensure that members of the public comply with social distancing when on the employer’s premises.
If an employer does not comply with social distancing requirements, they may be ordered to shut-down operations until adequate measures are implemented; be liable to a fine or imprisonment under OHSA; be held criminally liable if employees are infected due to negligence or wilful non-compliance; be vulnerable to civil claims by employees; and/or be required to comply with any other court order.
What can the prudent employer do to ensure physical distancing in temporal terms?
Employers are required to arrange for the phased return to work of employees.
Furthermore, there is currently a national curfew in place and only employees performing essential or permitted services in possession of a permit are permitted to leave their homes between 23h00 and 04h00.
The change in working hours, and other working conditions constitute changes to terms and conditions of employment. Consultation with employees and/or trade unions is therefore necessary and employers must take cognisance of any collective agreements in place.
Employers will be able to unilaterally change shift patterns, provided that there is no trade union agreement regulating these shifts and provided that there will be no change to overall working hours.
In order to comply with these requirements, employers are required to:
- where practicable, re-arrange shift patterns, implement a staff rotation roster, stagger work times;
- permit employees to work from home where practicable; and
- reduce face-to-face interaction between employees and members of the public.
What protections should the prudent employer consider implementing, in addition to physical distancing?
The Directive requires employers to implement screening measures to monitor symptoms of employees and their possible exposure to COVID-19. Furthermore, it is now an offence to refuse an instruction from a law enforcement official to wear a face mask. Masks are also required to be worn in the workplace.
Employers are required to comply with the Guidelines issued by the Department of Health in respect of symptom screening and, where required, conduct medical surveillance and testing. Employers are responsible for developing testing protocols when employees demonstrate any symptoms of COVID-19. When employees present with symptoms of Covid-19, employers must not allow the employee to access the workplace. If a symptomatic employee is already present at the workplace, that employee must be isolated, provided with a surgical mask and transported for self-isolation or medical examination and testing. Employers are then required to: assess the risk of transmission to other employees; disinfect the work area; undertake contact tracing; refer all at-risk employees for screening; and take any other appropriate measures to prevent possible transmission.
In terms of the Regulations published on 18 August 2020, employers who fail to take reasonable steps to ensure that employees wear masks at all times will be guilty of and offense and may be liable to a fine and/or imprisonment for up to 6 months.
When screening employees, the following should be observed:
- Employers are required to provide employees and visitors to the workplace with hand sanitizer with at least 70% alcohol content in accordance with the recommendation from the Department of Health. Employers are also responsible for ensuring that there are adequate facilities for washing and drying hands.
- Employers must also take measures to ensure that work surfaces and equipment, common areas and objects are disinfected at regular intervals.
- Cloth face masks are to be provided to employees free of charge, and must be worn while in the workplace and when travelling to and from the workplace.
- Employers must keep the workplace well-ventilated to reduce the viral load in the workplace.
- PPE should be provided to employees where recommended by the National Department of Health, the National Institute for Communicable Diseases or the National Institute for Occupational Health. PPE should also be provided when required by any specific sectoral guideline.
- Failure to comply with the Directive renders the same consequence as those stated under section 38 of the OHASA.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
The Directive requires mandatory screening upon entering the workplace. Furthermore, the Department of Health published a Guideline on the submission of COVID-19 related health data from workplaces to the National Department of Health on 27 November 2020, which outlines the process for employers to submit relevant information of all workers who test positive to the National Institute for Occupational Health.
Employers must screen employees for observable symptoms associated with COVID-19, including fever, cough, sore throat, redness of eyes, or shortness of breath. In addition to the observable symptoms, employees must immediately report if they experience any of the following symptoms, whether inside or outside of the workplace: body aches, loss of smell or taste, nausea, vomiting, diarrhoea; fatigue, and weakness or tiredness.
As of 19 August 2020, a fever has been expressly removed from the list of screening criteria to identify suspected cases of Covid-19 as a result of further research by the Department of Health which found that a fever alone is no longer sufficient to indicate a suspected case of Covid-19, as per the new Symptom Monitoring Guideline. However, the Department of Health screening example form contained in the amended Symptom Monitoring Guideline does still leave room for temperature measurement records and includes a history of fever as a relevant additional symptom. This may have been an accidental inclusion.
Nevertheless, the Directive (which is a binding document) still requires employers to prevent entry to persons who have a fever. Accordingly, temperature testing is still permissible should employers wish to continue this practice. Although, there is no longer a specific temperature threshold at which persons must be refused entry into the workplace.
In screening employees and isolating symptomatic or infected employees, employers are required take necessary steps to protect employees from unfair discrimination and/or victimization.
If an employee displays or reports any of the above symptoms while at the workplace, employers must:
- Isolate the employee from other employees, provide the employee with a surgical mask and arrange for transportation of the employee to their home for self-isolation or to a medical practitioner or hospital for a medical examination or testing; and
- Assess the risk of transmission, disinfect the employee’s workstation and identify and screen other employees who may have been in contact with that employee.
- If there is a low risk of exposure, the employer may permit the employee to continue working and must monitor the employee’s symptoms for 14 days from the date of first contact. If there is a high risk of exposure, the employee must remain in quarantine for 14 days and must be placed on sick leave as per the employee’s contract of employment.
COVID-19 is now recognised as an occupational disease and, where an employee has contracted COVID-19 as a result of occupational exposure, the employer must assist the employee with lodging a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993, in accordance with Notice 387 published on 23 July 2020. Furthermore, a Directive on Compensation for Workplace-Acquired Novel Corona Virus Disease (COVID-19) was published on 23 July 2020.
What are the requirements regarding travel – either to or from the office or business travel?
South Africa is currently under Adjusted Alert Level 3 of the national lockdown and employees do not require permits to travel to work during Alert Level 3, unless they are required to render their services between 23h00 and 04h00.
Employers are encouraged to provide alternate means of transport for employees who make use of public transport to commute to and from work. Where it is not practicable for employers to provide alternate transport, employees must be provided with additional PPE to be used when commuting.
Directives have been issued by the Minister of Transport on the use of public transport, including rail and air transport for business use.
Furthermore, regulations have been issued with regard to cross-border road transport, sea ports and the partial re-opening of land borders.
How does the prudent employer decide which employees should return to the workplace?
The Regulations require employers to develop a plan for the phased return to work of employees in the workplace. Employers must comply with applicable sector specific restrictions.
- The workplace plan must also include lists of staff who can work from home and vulnerable employees who will be required to stay at home or work from home.
- Special measures must be implemented in respect of vulnerable employees.
- In circumstances where special measures are not practicable, vulnerable employees should be placed on either paid or unpaid leave and may be eligible for unemployment benefits.
- Where employees are placed on short-time, employers must spread the working hours evenly throughout its workforce.
What if an employee refuses to return to the workplace?
The updated Directive provides that an employee may refuse to return to work if circumstances arise which, with reasonable justification, appears to the employee to pose an imminent and serious risk of their exposure to Covid-19. Employees who refuse to perform work must, as soon as reasonably practicable, inform their employer of the refusal and the reason for the refusal to work. On consultation with the appointed Covid-19 compliance officer and any health and safety committee, the employer must endeavour to resolve any issues arising from the refusal to perform work. An employee who reasonably refuses to work cannot be dismissed, disciplined, prejudiced or harassed for refusing to perform work. Disputes of this nature should be referred to the Commission for Conciliation and Arbitration (the “CCMA”) or an accredited bargaining council for conciliation or arbitration.
If an employee unreasonably refuses to tender their services then an employer does not have an obligation to remunerate that employee. Employees who refuse to tender their services without good reason may be subject to disciplinary action, and may even be dismissed, for failing to obey a lawful and reasonable instruction.
The Directive now extends the consultation obligation to include a health and safety representative (where there is no committee) and adds a further reporting obligation in the event that the matter cannot be resolved internally.
Where the matter cannot be resolved, the employer is obliged to notify an inspector within 24 hours and to advise the employee and all other involved parties that an inspector has been notified. If the employer does not make the notification, the employee may do so. An inspector may then, in terms of section 30 of the OHSA, issue a prohibition notice if, inter alia, the inspector is of the opinion that any act threatens or is likely to threaten the health and safety of any person.
What other considerations should the prudent employer be thinking about at this time?
There are a number of other considerations to which employers should remain alive, including:
- Possible strike action and/or litigation by trade unions when employers are required to change terms and conditions of employment;
- Restructuring and retrenchments may be necessary following the economic impact of COVID-19;
- The Directive requires employees who exhibit symptoms of the virus to be placed in self-isolation for a period of 10 days. Employers will need to re-consider their leave policies to cater for instances where employees exhaust their sick leave and annual leave while in mandatory isolation;
- Where employees have been in contact with the infected employee or have been working in close proximity to such an employee, employers are required to assess the risk of transmission in respect of these employees and, where the risk of transmission is high, employees must remain in self-quarantine for 10 days and must be placed on sick leave for this period. Low risk employees can return to work as long as they continue to work using their cloth masks and observing the standard precautions. Such employees’ symptoms must be monitored for 10 days from the first point contact that they had with the infected employee. The risk assessment must be conducted in accordance with the Symptom Monitoring Department of Health Guidelines (the Symptom Monitoring Guideline);
- In order to ensure that it is safe for employees to continuing to work after a positive case of Covid-19 has been detected, it is recommended that an employer closes operations and deep cleans the premises before reopening, in accordance with the Positive Worker Department of Health Guidelines;
- The Directive is silent on the procedure for employers to follow in circumstances where a member of an employee’s household is infected with the virus. In this regard, employers should establish procedures in line with the Department of Health guidelines on the clinical management of confirmed and suspected cases and should make these procedures known to their employees;
- The Positive Worker Guidelines note that if an employee is confirmed to have Covid-19 at the workplace, an employer must initiate a joint meeting with the relevant authorities, safety officers, health and safety committees, and relevant management staff to outline actions taken to date as well as the proposed plans of action and timelines to reduce further exposure and transmission risk;
- An inspector designated under the OHSA is empowered to prohibit any action that, in the opinion of the inspector, will threaten or is likely to threaten the health and safety of any person. In terms of these powers an inspector could prevent an employer from re-opening in circumstances where adequate precautions have not been put in place after a positive Covid-19 case has been reported;
- Difficulties may arise in conducting performance reviews where employees have worked from home or were unable to work for extended periods;
- Remote working presents challenges in monitoring and ensuring cyber security and confidentiality;
- Disciplinary hearings, conciliations and arbitrations may have to be conducted remotely;
- Challenges may arise in relation to the right to privacy of employees where they are requested to disclose medical conditions.
What are the safety and employment issues for consideration regarding the vaccines?
It is not permissible for an employer to require its employees to be vaccinated in order to prevent them from contracting or spreading COVID-19. Any mandatory vaccination policy would in all likelihood violate section 12 of South Africa’s Constitution, which guarantees everyone the right to bodily integrity, including the right to control over one’s own body.
It is highly improbable that such action would be considered reasonable and justifiable under the Constitution, despite the dangers that COVID-19 poses to society. In South Africa, it is presently not mandatory for parents to vaccinate their children for common diseases.
For this reason, it would be unfair and unlawful for an employer to subject its employees to any form of occupational detriment in the event that they refuse to undergo a vaccination. In this regard,
- Section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA) prohibits dismissals that discriminate against employees based, inter alia, on their religion, conscience, belief, political opinion or culture.
- The Employment Equity Act 55 of 1998 (the EEA) offers similar protections against discriminatory conduct that falls short of a dismissal. The EEA also protects applicants for employment.
- Finally, section 5(2)((c)(iv) of the LRA prohibits employers from prejudicing an employee (or person seeking employment) for refusing to do something that the employer is not lawfully entitled to require them to do.
An employer would be entitled to encourage their employees to be vaccinated, provided that such encouragement does not go any further than providing information and facilitating the logistics, through the provision of special leave or hiring a nurse for the purpose. The employees must be informed that vaccination is not compulsory and that no adverse consequences will follow for a failure to be vaccinated.
To the extent that an employer intends to use the vaccination results as a means of determining which employees are capable of having COVID-19, it would constitute ‘medical testing’ in terms of the EEA which has a broad definition and includes:
“any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition.”
Medical testing of employees is generally prohibited in terms of section 7(1) of the EEA, even with employees’ consent, unless either of the two below exceptions apply:
- Legislation permits or requires testing (sub-section 7(1)(a) of the EEA); or
- It is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job (sub-section 7(1)(b) of the EEA).
There is no existing legislation that permits an employer to enquire into the vaccination history of its employees (the first exception). However, it is at least arguable that a court would find that it is justifiable to compel an employee, under the second exception, to provide his or her vaccination history as a means of establishing the likelihood that an employee has a medical condition (i.e. COVID-positivity). The invasion of the employee’s privacy would need to be balanced against, in particular, social policies such as the limitation of the spread of COVID-19. Given that an employer may already lawfully enquire into other matters (for example, symptoms commonly associated with COVID-positivity) it seems likely that an enquiry into vaccination history would not be seen as excessive.
A more conservative approach would be one that goes against making such enquiries into the vaccination history of employees. In this regard, an employer has other options available in order to establish possible COVID-positivity, such as the existing mandated screening mechanisms. An employer may also continue to require their employees to work remotely.
In summary, it is arguable, but subject to some risk, that an employer could require its employees to disclose whether they had undergone a vaccination.
There is presently no South African legislation requiring vaccinations of any nature and it is relatively unlikely that any such legislation will pass constitutional muster were it to be enacted.
On the assumption that an employer is able to collect vaccination data from its employees or its visitors have consented to the collection of such information, the employer must ensure that such collection, storage or transfer of data is done in accordance with the Protection of Personal Information Act 4 of 2013 (POPI). As vaccination data constitutes special data in terms of POPI, the employer may not process this data without the employees’ / visitors’ consent, unless such processing is required by law (which in respect of visitors at least, it presently is not).
Although there will not be enforcement of POPI’s provisions until 1 July 2021, its provisions are in force. Moreover, a Guidance Note was published by the Information Regulator on 3 April 2020, which requests companies to voluntarily comply with POPI when processing personal information of data subjects for the purpose of containing the spread and reducing the impact of Covid-19 and in particular, to take steps to ensure that such information cannot be used to discriminate against employees. We would recommend that employers seek to comply with POPI in order to adopt best practice and to prepare for the stage when non-compliance with POPI’s requirements will result in legal consequences.