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.
On 1 June 2020, South Africa transitioned to Alert Level 3 of the national lockdown and most business operations were permitted to resume. The Disaster Management Act Regulations (“Regulations”) were most recently updated on 12 July 2020 to include the applicable restrictions during Alert Level 3. The COVID-19 Health and Safety in the Workplace Directive (“Directive”) was updated on 4 June 2020 and 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;
- 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 500 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 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.
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;
- providing PPE such as cloth face masks, face shields and aprons; and
- ensuring 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; 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 21h00 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 possible exposure to COVID-19.
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 July 12, 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.
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.
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 193 published on 3 March 2020.
What are the requirements regarding travel – either to or from the office or business travel?
South Africa is currently under 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 travel across provincial borders or to render their services between 21h00 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.
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.
What other considerations should the prudent employer is 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 14 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;
- 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;
- 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.