COVID-19: ADDITIONAL OBLIGATIONS ON SOUTH AFRICAN EMPLOYERS IN TERMS OF THE REVISED OCCUPATIONAL HEALTH AND SAFETY DIRECTION
On 1 October 2020 the Minister of Employment and Labour published a new consolidated COVID-19 Direction on Occupational Health and Safety in the Workplace (Revised OHS Direction). The Revised OHS Direction replaces the Direction that was published on 4 June 2020.
The Revised OHS Direction takes into account recent developments communicated by the National Department of Health (NDoH). This is in light of new information about the virus from sources like the World Health Organisation.
The Revised OHS Direction aims to assist the NDoH in its collation and analysis of workplace data to prevent the escalation of the pandemic. The Revised OHS Direction accordingly places additional obligations upon employers whose employees have returned to work.
These obligations supplement the health and safety measures already required by the previous Direction, and generally in terms of the Occupational Health and Safety Act (OHSA).
We highlight the most notable changes and additions below.
Risks assessments and plans for protective measures
There is still a requirement for all employers to undertake a risk assessment and to develop a Workplace Plan on the basis of that assessment, outlining the protective measures in place for the phased return of employees before opening.
What is new, is that there is now an additional item that must be included in an employer’s Workplace Plan – a description of the procedure to be followed to resolve any issue that may arise from the exercise by an employee of the right to refuse to work in the circumstances contemplated in direction 14(1) (see further information below).
Administrative measures – employers with more than 50 employees
Notably, there are new reporting obligations imposed on employers with more than 50 employees:
Such employers must submit a record of their risk assessment, together with a written policy concerning the protection of the health and safety of employees from COVID-19 as contemplated in section 7(1) of OHSA to (i) their health and safety committee; and (ii) the Department of Employment and Labour (DEL).
The submission to the DEL must be made by email to the address of the appropriate Provincial Chief Inspector (available here) within 21 days of the commencement of the Revised OHS Direction, i.e. by no later than 21 October 2020.
Previously, this obligation only arose where an employer employed more than 500 employees.
In addition, while the obligation to provide screening and testing data previously only applied to employers with more than 500 employees in certain sectors, all employers with more than 50 employees in a workplace must now submit the following categories of data to the National Institute for Occupational Health (NIOH) electronically (to OHSworkplace@nioh.ac.za or via the online platform) in the manner set out in the NDoH’s Guidelines (available here):
- each employee’s vulnerability status for serious outcomes of a COVID-19 infection;
- details of the symptom screening of employees who are symptomatic;
- details of employees who test positive for COVID-19;
- the number of employees identified as high-risk contacts (and who have been quarantined) as a result of exposure to a worker who has tested positive for COVID-19; and
- details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.
Vulnerability status data must be provided once in respect of each employee. The remaining data is to be submitted weekly, as soon as possible before Tuesday in respect of the data collected in the previous calendar week commencing on Sunday.
The above data may also be submitted by an employer via an employers’ association, if the association has entered into an agreement with the NIOH to receive, process and submit the data to the NIOH and has undertaken to submit the data on behalf of the employer.
Importantly, employers must inform their employees that their personal information will be submitted to the NIOH in accordance with the employer’s legal obligations and that the NIOH will comply with the provisions of the Protection of Personal Information Act.
Reporting of positive cases at the workplace
While previously employers were required to report each instance in which an employee tested positive for COVID-19 to the NDoH via the COVID-19 hotline number, positive cases must now be reported to the NIOH in the same manner as the reports made by employers with more than 50 employees (described above).
In addition, the Revised OHS Direction requires employers to inform the Compensation Commissioner whenever a worker has been diagnosed with COVID-19 at the workplace, in accordance with the Directive on Compensation for Workplace-acquired Novel Corona Virus Disease.
Referral of workers to a public health facility
The Revised OHS Direction has clarified that, in the event that a worker displays symptoms of COVID-19 at the workplace, the employer’s obligation is to isolate the worker and to arrange for the worker to be transported to a public health facility (i.e. one of the established testing sites). From there, the worker will either be directed to self-isolate or will undergo a medical examination and/or testing.
Isolation and quarantine periods
The Revised OHS Direction has now been brought in line with the updated guidelines by the NDoH, by reducing the periods of self-isolation (for workers who have tested positive) and self-quarantine (for close contacts/workers with high-risk exposure to a positive case) from 14 days to 10 days. Health workers with high risk exposure must remain in quarantine for 7 days, which can, by agreement with the worker, be reduced to 5 days.
Employers with 10 or less employees
More limited obligations still apply to employers who employ 10 or less employees. The only change is that the employer must now contact the relevant provincial inspectorate (and not the general COVID-19 hotline number) to obtain instructions when an employee presents with symptoms at work.
Refusal to work due to exposure to COVID-19
The previous Direction introduced a mechanism whereby an employee can refuse to 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 exposure to COVID-19. In such circumstances, the employer is under a duty to endeavor to resolve any issue that may arise from the exercise of such right, after consultation with the COVID-19 Compliance Officer and any health and safety committee.
Direction 14 of the Revised OHS Direction 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 of the issue within 24 hours and to advise the employee and all other parties involved in resolving the issue 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.
If you have any questions, please contact a member of our South African Employment and Benefits Practice.