COVID-19 and The Workplace

President Cyril Ramaphosa announced a gradual phasing out of lockdown and, starting on the 1st of May 2020, the country moved from phase 5 to phase 4, where various sectors of industry are now allowed to re-open, subject to certain stringent rules which aims to contain the spread of COVID-19 (To download the regulations which came into effect on 1 May, 2020, click here)

Employers who are allowed to re-open their businesses under phase 4 should, however, be well aware of the fact that they will have to assess the possible risks faced by their employees and clients, and implement reasonable measures to mitigate those risks, before they do so.

It is important to note that there is existing legislation in place which governs workplace safety and also apply to the COVID-19 outbreak. Employers should, in this regard, as a departure point, use the provisions of the Occupational Health and Safety Act, 1993 (“the OHS Act”), read with the Hazardous Biological Agents Regulations.

Section 8 of the OHS Act, which deals with the general duty of employers to employees, obligates employers in Sect 8(1) to “provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”, while Section 8(2)(a) to (j) highlights some of these duties, which includes, for example:

(i)       taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

(ii)      making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

(iii)     establishing, as far as is reasonably practicable, the possible hazards at the workplace to the health or safety of persons and, as far as is reasonably practicable, establishing what precautionary measures should be taken in this regard;

(iv)     providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;

 (v)     taking all necessary measures to ensure that the requirements of the OHS Act are complied with by every employee or on premises under the employer’s control;

(vi)     enforcing such measures as may be necessary in the interest of health and safety; and

(vii)    ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented.

Of particular importance is the provisions of Section 9 of the OHS Act, which deals with the general duties of employers and self-employed persons, to persons other than their employees. Section 9(1) requires employers to conduct their undertakings in such a manner as to ensure, as far as is reasonably practicable, that these persons, who may be directly affected by their activities, are not thereby exposed to hazards to their health or safety.

It should be noted that the OHS Act is the only Labour Act that regards the consequences of non-compliance as a criminal offence, which means that both the employer and employee may be criminally prosecuted if they did not comply with the provisions of the Act. Non-compliance may also give rise to civil liability.

Government expect from employers not only to comply with the provisions of the OHS Act and the Hazardous Biological Agents Regulations as indicated hereabove, but to also implement various measures at the workplace, as set out in a guideline document issued by the Department of Employment and Labour: Workplace Preparedness: COVID-19 (SARS-CoV-19 virus), on 16 March 2020, which is based on traditional infection prevention and occupational hygiene practices and focuses on the need for employers to implement engineering and administrative controls, introduce safe work practices and provide appropriate Personal Protective Equipment (PPE) The planning guidance document may be downloaded here.

The Minister of Employment and Labour has issued a directive: COVID-19 Direction on Health and Safety in the Workplace, which was gazetted on 29 April 2020, and seek to ensure that the measures taken by employers under OHS Act are consistent with the overall national strategies and policies to minimise the spread of COVID – 19 (Download here).

The Minister also, on 3 May 2020, issued a directive: Minister Thulas Nxesi: Directions for Coronavirus COVID-19 Alert Level 4, which contains details on the basic measures that employers must take to prevent the transmission of the corona virus in the workplace, that must be put in place by businesses that are re-opening, before restarting work. In terms of the Directive employes must undertake a risk assessment or risk assessment review, to adapt the provisions of the Directive to the specific requirements of individual workplaces. The Minister stressed that the Directive in no way reduces the existing obligations on employers in terms of the OHS Act. (Download here).

It is clear that, in the case of COVID–19, employers will have to implement a complex combination of health and safety protocols as, inter alia, referred to hereabove, while at the same time ensuring that their employees observe the well-known guidelines i.r.o. social distancing, sanitation and hygiene, and use of appropriate personal protective equipment, like cloth face masks, as determined by the National Department of Health.

We trust that the above information, and especially the links created in the Newsletter to give you easy access to the relevant documentation, will assist your business to prevent the transmission of COVID19 in workplaces as far as is reasonably practicable.

Should you require any assistance please contact us at:

Office: 012 882 0976

Email: Christo@svninc.co.za

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