COVID-19: COMPENSATION FOR OCCUPATIONALLY ACQUIRED COVID-19
The Occupational Health and Safety Direction of 28 April 2020 (OHS Direction) imposes onerous health and safety obligations on employers to prepare and maintain the workplace in order to mitigate the risk of spreading COVID-19 amongst employees returning to work.
These health and safety obligations are likely to remain in place as we move through the various Alert Levels. However, even if stringent health and safety measures are implemented, the risk exists that employees may be exposed to confirmed or suspected cases of COVID-19 in the course and scope of their employment.
This newsflash considers compensation available to employees, and liability of an employer for ‘Occupationally Acquired COVID-19’.
Compensation in terms of COIDA
The Compensation Commissioner has published a notice on ‘Occupationally Acquired Covid-19’ in terms of the Compensation for Occupational Injuries and Diseases Act 130 Of 1993 (COIDA). The Notice defines ‘Occupationally Acquired Covid-19’ as a disease contracted by an employee arising out of and in the course of his or her employment.
COIDA provides for amongst other things, compensation for occupationally-acquired diseases, including COVID-19. In terms of COIDA, employers are protected from delictual claims for damages in terms of the common law arising from occupationally acquired COVID-19.
The COIDA Notice provides that Occupationally-Acquired COVID-19 relies on single or multiple exposures to confirmed cases of COVID-19 and may be confirmed by:
- occupational exposure to a known source of COVID-19;
- a reliable diagnosis of COVID-19 as per the World Health Organisation Guidelines;
- an approved official trip and travel history to countries and/ or areas of high risk for COVID-19 on work assignment;
- presumed high-risk work environment where transmission of COVID-19 is inherently prevalent; and
- a chronological sequence between the work exposure and the development of symptoms.
In terms of COIDA, if there is evidence that a worker contracted COVID-19 as a result of occupational exposure, the employer must, within 14 days of being notified or having learned in some other way that an employee has contracted COVID-19, report it to the Compensation Commissioner. Failure to do so amounts to an offence in terms of COIDA, the penalties for which include liability for a fine, or to imprisonment for a period not exceeding one year.
If the Compensation Fund accepts the application for compensation, employees will be provided with medical aid and temporary total disablement benefits for as long as the disablement continues, but not for a period exceeding 30 days.
If there are complications, the Commissioner may review the case and award permanent disablement benefits. In addition, and in the unfortunate event that an employee dies as a result of complications of COVID-19, death benefits such as reasonable burial expenses, widow and dependents pensions may be payable.
If the employee contracts COVID-19 due to the negligence of the employer, the employee may apply to the Commissioner for increased compensation in terms of COIDA. In such circumstances, the employer may be at risk of increased assessment costs.
In addition, where the negligence amounts to non-compliance with the OHS Direction, the employer may be risk of enforcement proceedings in terms of the Occupational Health and Safety Act 85 of 1993, (OHSA) or being liable for offences and penalties as set out in section 38 of the OHSA.
COIDA protects employers against delictual claims by their employees. This protection is not applicable to a third party that contracts COVID-19 in the employer’s workplace, and an employer may be exposed to a civil claim in this regard.