On 17 March 2020, the Department of Employment and Labour issued guidelines for employers to deal with COVID-19 in workplaces. In the period since issuing the guidelines, a clearer picture emerged about COVID-19 and the nature of the hazards and risks in the workplace and the precautions that should be taken to minimise these risks. As a result, on 29 April 2020, the Minister of Employment and Labour ("Minister") published a directive on occupational health and safety measures to reduce and eliminate COVID-19 infections in the workplace ("First Directive").
On the same date, the Minster of Co-Operative Governance and Traditional Affairs issued further regulations under the Disaster Management Act providing for general provisions applicable during the national state of disaster and specific provisions for each level of the five level alert system ("Regulations").
On 4 June 2020, the Minister issued a Consolidated Directive on Occupational Health and Safety Measures in Certain Workplaces to replace the First Directive (Consolidated Directive”).
The Consolidated Directive and Regulations have important and far-reaching implications for employers who wish, and are entitled, to operate during the remainder of the national state of disaster. The Directives and Regulations set out various measures that employers must take in order to protect the health and safety of workers and members of the public who enter their workplaces or are exposed to their working activities.
The Regulations and the Consolidated Directive will remain in force for as long as the declaration of the current national state of disaster remains in place. The Regulations apply to all employers. The Consolidated Directive also applies to all employers, save for employers in industries where industry-specific directives have been issued such as the mining industry. The specific obligations now imposed on employers in terms of the Consolidated Directive and Regulations are discussed below.
Changes to the First Directive under the Consolidated Directive
The Consolidated Directive changes and replaces certain obligations that applied under the First Directive. We consider these changes below.
Plan for re- opening workplaces
The plan for re-opening the workplace which was initially only required under the Regulations has been incorporated into the Consolidated Directive. Under the Consolidated Directive, the plan must be developed on the basis of the risk assessment conducted by the employer. In addition, the employer must consult a representative trade union and health and safety committee or health and safety representatives on the plan and risk assessment.
For small businesses employing less than 10 employees, the plan may be basic, but for medium and large businesses the plan must include certain minimum information.
Under the Consolidated Directive, the employer is required to submit a record of its risk assessment and written policy to the Provincial Chief Inspector of the Department of Labour within 21 days of the commencement of the Consolidated Directive. The First Directive did not set a time frame in this regard.
Employees diagnosed with COVID-19
Under the First Directive, a worker who has been diagnosed with Covid-19 and has isolated in accordance with Department of Health Guidelines could not return to work without first being required to test negative for the virus. Under the Consolidated Directive, employees that have tested positive are required to complete 14 days of self-isolation and may return to work upon receiving confirmation after a medical assessment that they are fit to do so.These employees will also be required to wear a surgical mask for 21 days from the date of diagnosis. It appears that a test is not required.
Under the Consolidated Directive, upon an employee being diagnosed with Covid-19, an employer must assess whether there is a need to temporarily close the affected work area for decontamination using an incident-based risk assessment. The employer must assess whether employees exposed to another employee who has been diagnosed with COVID carry a high or low risk of transmission and may permit the exposed employees to continue working or require them to quarantine on the basis of its assessment of the risk. In such circumstances, the employer is still required to inform the Department of Employment and Labour and investigate the cause, including any control failures and review the risk assessment to ensure the appropriateness of controls.
The Consolidated Directive offers a definition of vulnerable employees and requires an employer to take special measures to mitigate the risk of COVID -19 for these employees to facilitate their safe return to work or their working from home. Vulnerable employees include employees with known or disclosed health conditions or comorbidities and employees above the age of 60 who are at risk as set out in guidelines issued by the Department of Health. The First Directive did not make mention of vulnerable employees as a special category although this was encompassed in the Regulations.
One notable omission from the Consolidated Directive which was originally included in the First Directive is that employers are no longer obliged to make appropriate arrangements for the washing, drying and ironing of cloth masks.
Refusal to work due to exposure to Covid-19
An important provision introduced by the Consolidated Directive is that employees may refuse to perform any work where, in performing that work, the employees feel they face an imminent and serious risk of exposure to Covid-19. When an employee refuses to work in this situation, the employer is obliged to endeavour to remedy the issue. Employers are not allowed to dismiss, discipline, prejudice, harass or even deduct remuneration from an employee who refuses to work where the risk of Covid-19 exposure is reasonably justified.
Measures for workplaces to which public has access
Additional measures have been included in the Consolidated Directive relating to workplaces to which the public has access. A key new measure is that employers are required to determine how many people should be allowed into the workplace, according to the floor area of the workplace, to ensure that both clients and employees can social distance at least one and a half metres away from each other.
What comes next?
The Consolidated Directive is by no means the final word on employers’ obligations in the fight against COVID-19 in the workplace. The Consolidated Directive confirms that the Chief Inspector must facilitate the development of sector specific guidelines and supplement the Directive through engagement with NEDLAC. However, for the time being, employers intending to bring employees back to the workplace are well advised to pay careful attention to the requirements of the Consolidated Directive and the Regulations and, in particular, to conduct the hazard identification and risk assessment necessary to develop and implement a thorough COVID-19 Ready Workplace Plan.