As employees initially returned to the workplace after more than a month in hard lockdown, CEO published material on Health and Safety in the workplace, action plans going forward and helpful risk-mitigating measures. These are all good and well, however, considering the alarming fact that cases are now reaching an all-time high, employers need to avoid making the grave mistake of thinking that health and safety in the workplace is simply a once-off priority that can be ticked off their to-do list. Employers need to be aware that, now more than ever, the concept must be prioritised.
Protective measures and risk assessments
The law still requires all employers to undertake risk assessments and create a workplace plan on the basis of the hazards previously identified. Such a plan should serve as a directive for workplace safety and protocols which employees are obligated to follow. Once the plan has been drafted and approved by management, employees should be notified thereof, responsible persons need to be appointed to monitor compliance and report to management. Such a plan needs to be reassessed on a regular basis.
It has become apparent that where workplaces used to follow their plans and ensured compliance vigorously in June to August last year, upon employees returning to work, employers have now considered health and safety to be less of a priority, which may contribute to the alarming increase in workplace infections.
We advise and encourage our members to revisit the protocols which were initially created for employees returning to the workplace, assess which measures should be applied more strictly and make sure there is one responsible official in the workplace who will ensure compliance. In most workplaces, the disciplinary code needs to be revisited to make provision for transgressions related to occupational health and safety – such as refusal to wear a mask or PPE, failure to complete checklists or failure to report symptoms to the responsible official.
Refusal to work as a result of fear
We have received some inquiries from our members addressing the question of whether an employee may lawfully refuse to work where he or she feels unsafe. The answer is yes, under certain circumstances. However, what is also new, is that under the latest directive (Direction 14), there is an additional item which must be included in an employer’s risk assessment plan.
Under certain circumstances, an employee can refuse to work where there is reasonable justification, and it appears that the employee’s performance of duties may pose an imminent and serious risk of exposure. In such cases, the employer has a duty to endeavour to resolve the issues after consultation with a COVID19 compliance officer as provided for by the Department of Labour and any health and safety committee.
The revised direction now extends the obligation to involve a health and safety representative, as previously nominated by the health and safety workplace plan and adds a further obligation to report the incident to the Department of Labour if the issue is left unresolved within 24 hours and to notify the parties involved accordingly. If the employer fails to notify the Department, the employee may do so. An inspector may then, in accordance with section 30 of the OHSA issue a prohibition notice prohibiting any further tendering of services under the current circumstances until the matter has been resolved if the Department is of the view that the workplace poses an imminent danger to a person’s health or safety.
Latest Administrative Requirements for Employers – Update
Employers with more than 50 employees in their service must submit a risk assessment together with a written policy regarding the protection of employees against COVID 19 (in terms of section 7 of the OHSA) to the Health and Safety Committee of the Department of Labour. Previously, the obligation to do so only arose where there are more than 500 employees in their service, however, more employers now need to comply with this requirement.
In addition, employers falling under this category now need to provide screening information to the National Screening Institute of Occupational health to OHSworkplace@nioh.ac.za or via online platform available. Information to be submitted must address the following factors:
- Vulnerability status per employee;
- Symptom screening of symptomatic employees;
- Details of employees who have tested positive ;
- High-risk contacts (quarantined/isolated employees);
- Post-infection outcomes and assessments
Employers should note that they have to inform their employees that their personal information has to be submitted by law and that the NIOH accordingly will be compliant with the Protection of Personal Information Act.
Reporting of Positive cases in the workplace must now be done in terms of the procedure above, and the Revised OHS Direction requires employers to inform the compensation commissioner where a worker has been diagnosed so that compensation may be granted accordingly.
Where an employer employs 10 or less employees, he or she should still contact the provincial inspectorate and not the general COVID19 hotline number to obtain instructions when an employee presents symptoms at work.
Do I, as an employer, have a say with regards to my employee’s outside of work activities?
Normally, we would advise our members to refrain from interfering with employees’ activities which do not concern the workplace. However, an alarming situation may arise where an employee, for instance, attends a large gathering or high-risk activity only to return to work the next day infecting the entire workforce. Therefore, employers should revise workplace policies to provide for this situation and place them in a position where they can control this type of risk.
Firstly, employers should warn employees that the attending of large gatherings or high-risk activities outside of working hours will no longer be permitted and where an employee seeks in embarking on such activity that he or she should report intentions to do so prior. Failure to disclose participation in high-risk activities may be considered misconduct.
In light of the current pandemic, employers and employees play a pivotal role in preventing the spread of this deadly disease and need to work together to achieve this common purpose.
Article by: Janeske Greeff
Dispute Resolution Official – Cape Town