Covid-19 Directive – 7 October 2020

7 October 2020

Employment and Labour minister Thulas Nxesi has published a new directive on Occupational Health and Safety in the workplace during the coronavirus pandemic.

Chloё Loubser, senior associate at law firm Bowmans, said that the directive takes into account recent developments communicated by the Department of Health as well as new information about the virus from sources like the World Health Organisation.

The new regulations place additional obligations on employers whose employees have returned to work, she said.

Loubser outlined the biggest changes in more detail below.

Risk assessments 

Loubser said that there is still a requirement for all employers to undertake a risk assessment and to develop a workplace plan, 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 specific circumstances,” she said.

Employers with more than 50 employees

There are new reporting obligations imposed on employers with more than 50 employees, said Loubser. These include:

  • 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;
  • The submission to the department must be made by email to the address of the appropriate Provincial Chief Inspector (available here) within 21 days of the commencement of the directive, i.e. by no later than 21 October 2020.

“Previously, this obligation only arose where an employer employed more than 500 employees,” said Loubser.

“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 must now submit the following categories of data to the National Institute for Occupational Health (NIOH) electronically (to or via the online platform) in the manner set out in the guidelines (available here).”

This includes:

  • Each employee’s vulnerability status for serious outcomes of a Covid-19 infection;
  • Details of the daily symptom screening data;
  • 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, Loubser said.

“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,” said Loubser.

Reporting positive cases 

While previously employers were required to report each instance in which an employee tested positive for Covid-19 to the Department of Health 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 directive 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, said Loubser.

The directive also clarifies 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.

Isolation and quarantine periods

Loubser said that the directive has now been brought in line with the updated guidelines by the Department of Health, by reducing the periods of self-isolation and self-quarantine 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.

The self-isolation period applies to workers who have tested positive, while self-quarantine is for close contacts/workers with high-risk exposure to a positive cases.

Refusal to work due to exposure to Covid-19

Under the previous regulations, an employee could 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 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, said Loubser.

“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,” she sia.d

“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,” she said.

If the employer does not make the notification, the employee may do so, Loubser said.

An inspector may then, in terms of section 30 of the OHSA, issue a prohibition notice if they are of the opinion that any act threatens or is likely to threaten the health and safety of any person.

You can read the full directive below.