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  • Kevin Smith

COVID-19:Labour Law considerations




On the 28th April 2020 the Minister of Employment and Labour issued a directive on the implementation of Occupational Health and Safety Measures in Workplaces.

The purpose of these measures is to stipulate measures that must be taken by employers in order to protect the health and safety of employees/workers and members of the public who enter their workplace or are exposed to risk in their working activities.

For the purposes of OHSA[1] in the workplace to which the directive applies, the identifiable hazard relating to covid19 is the transmission by an infected person of the virus[2] to workers in the workplace. In workplaces where members of the public have access, this includes the transmission from members of the public to employees.

Each situation requires special measures to be implemented by employers in order to prevent the transmission of the virus.

Take note that the directive does not apply to workplaces:

· excluded in terms of Section 1(3) of OHSA;

· in which medical and healthcare services in terms of section 27(2) of the disaster management act are performed; and

· in respect of which another ministry has issued a directive dealing with health and safety.

Measures

Every employer must establish the following administrative measures:

· It must undertake a risk assessment to give effect to the minimum measures required by the directive taking into account the specific circumstances of the workplace;

· If the employer employs more than 500 employees, that employer must 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 as contemplated in section 7(1) of OHSA to-

a) Its health and safety committee established in terms of section 19 of OHSA; and

b) The Department of Employment and Labour.

· It must notify all workers of the contents of this Directive and the

manner in which it intends to implement it;

· It must notify its employees that if they are sick or have symptoms associated with the COVID–19 they must not come to work and to take paid sick leave in terms of section 22 of the BCEA;

· It must appoint a manager 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;

· It must ensure that the measures required by the Directive and its risk assessment plans are strictly complied with;

· It must, as far as practicable, 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 in order to achieve social

distancing;

· It must take measures to minimize contact between workers as well as between workers and members of the public;

· It must provide workers with information that raises awareness in any form or manner, including where reasonably practicable leaflets and notices placed in conspicuous places in the workplace informing workers of the dangers of the virus, the manner of its transmission, the measures to prevent transmission such as personal hygiene, social distancing, use of masks, cough etiquette and where to go for screening or testing if presented with the symptoms;

· if a worker has been diagnosed with COVID-19, an employer

must-

a) inform the Department of Health and the Department of Employment and Labour; and

b) investigate the cause including any control failure and review

its risk assessment to ensure that the necessary controls

and PPE requirements are in place; and

c) it must give administrative support to any contact-tracing measures implemented by the Department of Health.

Pertinent aspects of the directive

Employers are warned to take note of the following measures that are to instituted[3]:

Ø Every employer must take measures to give effect to symptom screening;

Ø Sanitizers and disinfectants must contain at least 70% alcohol content;

Ø Every employer must provide free of charge sufficient quantities of hand sanitizer for employees at work and for those working from home;

Ø Employers must ensure that all work surfaces and equipment is disinfected;

Ø Employers must ensure that areas such as toilets, common areas, door handles, shared electronic equipment are regularly cleaned and disinfected, and biometric systems are disabled or made COVID-19 proof;

Ø Employers must ensure that there are adequate facilities for washing hands with soap and water, and that only paper towels are used to dry hands after washing (the use of fabric towels are prohibited);

Ø Workers interacting with the public are required to sanitize their hands between each interaction;

Ø Employers must, free of charge, provide employees with a minimum of two cloth masks that comply with the guidelines issued by the Department of Trade, Industry and competition, for the employee to wear while at work and while commuting to and from work;

Ø Every employer must arrange the workplace to ensure that there is at least one and half meters between workers and members of the public, or put in place physical barriers or provide workers with face shields or visors;

Ø Every employer must keep the workplace well ventilated by natural or mechanical means to reduce the Covid-19 viral load, or where reasonable, have an extraction ventilation system; and ensure that all filters are cleaned and replaced in accordance with the manufacturer’s instruction; and

Ø Every employer must check regularly on the website of the National Department of Health, National Institute of Communicable Diseases and the National Institute for Occupational Health whether any additional PPE is required or recommended.

Employers with less than 10 employees must take the following measures:

§ Arrange the workplace to ensure that employees are at least one and half meters apart or, if not practicable, place physical barriers between them;

§ ensure that employees that present with the symptoms are not permitted to work;

§ immediately contact the COVID-19 hotline: 0800 02 9999 for instruction and direct the employee to act in accordance with those instructions;

§ provide cloth masks or require an employee to wear some form of cloth

covering over their mouth and nose while at work;

§ provide each employee with hand sanitizers, soap and clean water to wash their hands and disinfectants to sanitize their workstations;

§ ensure that each employee while at work washes with soap and sanitizes

their hands; and

§ ensure that their workstations are disinfected regularly; and

§ take any other measures indicated by a risk assessment.

Contravention

Any contravention constitutes a contravention of the OHSA and may be subject to the offences and penalties set out in section 38 of OHSA (maximum of R100 000.00 or two-years imprisonment).

Conclusion

We at Gani Mayet Attorneys can assist both employers and employees to ensure that working activities are both safe and compliant. Don’t hesitate to contact us should you require a workplace assessment and advice on how to make your workplace safe and compliant.

[1] Occupational health and safety act, 85 of 1993 [2] The SARS-CoV-2 virus [3] Government gazette no. 43257

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