On 4 June 2020, the Minister of Employment and Labour issued a directive aimed at regulating health and safety in the workplace in support of the fight against the COVID 19 pandemic. All employers must comply with the said Directive to ensure the safety of its workers. The Directive serves as a guideline to ensure job readiness and safety in the collective fight against the COVID 19 pandemic.
Employers may encounter certain challenges with the conduct of employees who are not complying with the Regulation, for example, failure to use the personal protective equipment (PPE). Employers should take steps against such transgressions.
As per the aforementioned Regulation, employees are required to have and use PPE at the workplace. It should be clearly communicated with employees, that the use of PPE is not only the employer imposing the law, but this is also a law that each and every worker has to comply with in South Africa. Failure to comply with the regulations set out by the employees will ultimately result in non-compliance on the part of the employer, which may result in penalties being applied against the employer. Such penalty could be a fine not exceeding R50 000.00 or imprisonment, or both and could also lead to a possible shut down of the company.
In order to avoid these penalties, which may negatively impact the company, it is advisable to address this with the non-complying employees and inform them of the consequences of non-compliance of the Regulation. It is recommended that training should be given to the employees over and above the initial training provided by the company. Although this may be time-consuming, we nevertheless recommend that this be done in order to ensure that employees are aware of what is required and that the instruction to comply is both lawful and reasonable.
Employees who fail to obey lawful and reasonable instructions of their employers may be charged with ‘insubordination’, which if serious, can even lead to a dismissal. Insubordination may result from a deliberate disregard of authority without valid reasons. Thus, what might look like an act of insubordination might actually not be, should the employee’s reasons for not obeying the employer’s instruction show that the employee’s conduct is justifiable, considering the circumstances that prevailed at the time the instruction was issued.
Should it be evident that the employee does not want to comply with the Regulation, which results in others being placed at risk, the employer will have no other alternative but to issue a warning either written or final written for failure to comply with a lawful instruction / (insubordination). Or where the employer’s disciplinary code makes specific provision for Occupational Health and Safety offences to issue warnings accordingly. Whether it will be a written or final warning, will depend on the company’s policy and disciplinary code. Should the contravention persist, and the employee(s) continue to be insubordinate the standard procedure of dismissal may commence by furnishing the employee(s) with a written notice to appear for a disciplinary hearing.
The courts have held that under certain circumstances, the employer can dismiss an employee(s) for not complying with the Health and Safety Regulations. However, every sanction will depend on the merits of the case and the employees’ defence if any.
Protecting your most vulnerable staff
The Occupational Health and Safety Act provides that an employer has an obligation to ensure a safe working environment for its employees by way of risk-assessment and elimination. Where workplace risks cannot be eradicated, the employer should mitigate these risks as far as reasonably practicable.
In terms of this guideline, the point of departure will be for an employer to embark on an identification process with regard to employees that are at a high risk of developing severe health complications as a result of COVID 19 and those who reside with or care for persons that are at risk of developing severe illness. It has been confirmed that the elderly and those with impaired functioning of organs (kidney, heart or lungs) as well as those with a depressed immune function are those that are most vulnerable.
The department of health has narrowed these categories of high-risk patients down to
- Those suffering from chronic lung disease, pulmonary fibrosis or any respiratory illness
- Those with moderate or severe hypertension or diminished functioning of certain organs
- Serious heart conditions
- Chronic Kidney or Liver disease
- Those who are obese
- Those with a compromised immune system
- Those who are more than 28 weeks pregnant – especially those with any of the ailments/conditions mentioned above
Assessment and optimisation
The guideline provides that such an employee, as has been identified, should be assessed by a physician. Where he/she cannot afford such medical attention, this has to be done at the expense of the employer.
The physician should then provide the employer with a confidential note regarding the vulnerability of such a patient regarding COVID 19 and should not make any disclosures on the employee’s ability to do the work in general. Preferably, the medical practitioner who assesses an employee should have an understanding of the employer’s operational running.
The doctor should then ensure that such an employee’s health condition is optimised in order to withstand the ravages of the disease. Examples of these health optimisation practices may include flu vaccinations where necessary or providing ARV treatment or prescribe chronic medication.
Protecting and managing
All employers should have an industry-specific health and safety policy in place to minimise the spread of the disease in the workplace and to minimise exposure. The employer needs to take into account the employee’s specific circumstances as well as the operational running of this business. Where possible, employers should accommodate their most vulnerable staff in a manner where they can still apply their skills and expertise optimally in the workplace without reducing their benefits. Adequate training is not only empowering but a fundamental requirement in order to ensure that the disease is managed efficiently in the workplace.
Accommodative measures may include:
- Alternative placement in order to reduce risk
- Restriction of certain high-risk duties, such as human contact and interaction
- Protective isolation
- Efficient risk-mitigating measures such as social distancing, sanitisation etc.
If the above practical measures are not possible, the employer should consider allowing the employee to work from home and that the necessary connectivity resources are available to them.
- Temporary incapacity may be motivated by a medical practitioner on the ground that workplace accommodation is not possible.
- The employee should be able to utilise his/her sick leave, where the circumstances necessitate
- Should the employee’s working hours be reduced on the adapted operational running of the business, the employer may claim the COVID 19 TERS benefit for the employee
- Unpaid leave should only be utilised as a last resort.
Return to work and incapacity Management
The employer should ensure that a Workmen’s Compensation Claim in terms of COIDA be lodged where an employee has contracted the disease in the workplace. Any sick leave in relation thereto should be managed as per the principles of the act. Employees with mild illness who need not be hospitalised should complete their prescribed 14 day isolation period before returning to work. Employees that have been severely ill for a prolonged period of time should be accommodated by the employer to ensure return-to-work reintegration with minimised risk. Prior to returning to work, a clinical test should be conducted by a medical practitioner to assess the level of clinical impairment as a result of the disease.