The Department of Employment and Labour has embarked on a number of blitz inspections to ensure that all employers, that are still currently operational, adhere to all necessary steps to stem the COVID-19 pandemic. On 30 March 2020, the department announced that it had compelled the closure of two retail store outlets in the Pretoria central business district for failure to adhere to the regulations and the provisions of the Occupational Health and Safety Act (OHS).
Provincial Chief Inspector, Advocate Msiza has announced that inspections have only just commenced and should the conduct of non-compliant employers continue, they will be forced to shut down operations. He said “We are conducting inspections in this time of need to give effect to Government’s efforts to fight the spread of COVID-19. In Our case, our role is in the workplaces, and as a result, we are prioritising inspections in terms of S29 of the OHS”.
Msiza went on to caution employees against failing to use PPE equipment provided by the employers.
Compliance with the provisions of the OHS needs to be considered from two main perspectives. Firstly, to create a safe working environment for employees, and secondly, to create a safe environment for customers and service providers. Should the employer fail to comply with the regulations and not pursue the safety of its employees and clients, they will be forced to shut their doors for the period of the lockdown.
Inspections will be done in terms of Section 29 and emphasis will be placed on the regulations relating to Hazardous Biological Agents. We have compiled a summary of what the employer needs to pay attention to, in terms of these regulations, in order to ensure compliance with the law and the health and safety of their clients and staff.
The regulation defines a hazardous biological agent (or HBA) as any micro-organism, cell culture or human endoparasite including any of which may have been genetical, which may cause infection, allergy or toxicity or otherwise be hazardous to the health of an individual.
Interestingly, the regulation categorises HBA’s as follows
1. Group 1 which is unlikely to cause human disease
2. Group 2 which may cause human disease, which is unlikely to spread to the community, for which treatment is available
3. Group 3 may cause severe human disease, and is considered a serious hazard and is likely to spread to the community. However, treatment is available.
4. Group 4 may cause severe human disease, which a high probability of spreading to the community for which no effective treatment is available.
In terms of HBA regulation coronavirus (COVID-19) is categorised as an HBA agent.
Information and training
The regulations provide that the employer, in consultation with the health and safety committee (if any) has an obligation to ensure that employees are comprehensively informed about
- the contents and scope of the regulations
- potential risks of exposure
- housekeeping procedure to follow
- correct use of personal protective equipment etc.
The employer should identify and assess the risks of exposure and as far as reasonably practicable, implement measures to mitigate or, where possible, eliminate such risks. The employer should, therefore, have an “action plan”. Enforcement thereof is also extremely important. Employees should be informed that there will be control measures implemented, and that non-adherence to the health and safety policy will lead to disciplinary action. It is recommended that policies and procedures be implemented as speedily as possible and communication with employees documented.
Employees who may be potentially exposed to HBA’s also have obligations in this regard which is set out as follows:
1. To prevent the spread of the disease – for example: disinfecting or disposing of materials possibly containing the HBA
2. Adherence to instructions from employer and health practitioners
3. Wearing PPE as prescribed under the regulations
4. Attending applicable training
It is therefore abundantly clear that the intention of the legislature is to emphasise that health and safety in the workplace is not only the responsibility of the employer, but also that of its employees.
It is also crucial that employers identify the most vulnerable employees, being those with underlying health issues and the elderly. The employer’s obligation to protect them at this time is emphasised. It is also advisable that where practicable a medical practitioner be consulted and provide further recommendations.
Personal Protective Equipment
It is clear that employees who are exposed to airborne HBA’s should be issued with respiratory masks. The employer also has the responsibility to see that all PPE provided is in adequate working condition. An employer should refrain from issuing used PPE to employees and facilities should be provided where it can be stored with proper access control, cleaned etc.
The outbreak of COVID-19 has led to unprecedented stock shortages in detergents, cleaning agents and hand sanitiser. It is the employer’s obligation to ensure that staff have an adequate supply at their disposal.
Although the lockdown and the subsequent legislative regulations have required essential-services employers to act speedily and decisively in order to operate at this time, it is essential that employers do everything, not only lawfully, but also reasonably practical to ensure a healthy and safe working environment.