Klass Looch Associates

Employer OHS Champion since 1986 


Department of Employment and Labour unveil guidelines to deal  with Covid-19 at workplaces. 17 March 2020

The Department of Employment and Labour has appealed to   employers to use the prescriptions of the Occupational Health and Safety   (OHS) Act of 1993 in governing workplaces in relation to Coronavirus Disease   2019 COVID–19.

The OHS Act read with the  Hazardous Biological Agents Regulations requires the employer to provide and  maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of employees.

 “Section 8(2)(b)   requires steps such as may be reasonably practicable to eliminate or mitigate   any hazard or potential hazard before resorting to personal protective equipment (PPE). However, in the case of COVID–19, a combination of controls is required, although the main principle is to follow the hierarchy of  controls.

 “However, before the implementation   of control measures, current risk assessments need to be reviewed and   updated, taking into account the new hazards posed by exposure to COVID-19 in   the workplace. This is in accordance with Section 8 (2) (d) of the OHS   Act".

 The Department wishes to appeal to employers who have not prepared for pandemic events to prepare   themselves and their workers as far in advance as possible of potentially worsening outbreak conditions. The Department advises employers to “go back   to basics" by conducting hazard identification and risk assessment to   determine the level of risk exposure and communicate to all workers.

As of 09 March 2020, corona virus infections had spread to eight new countries – increasing to 102 countries affected worldwide.

Coronaviruses are a group of viruses that cause diseases in mammals and birds. In humans, coronaviruses   cause respiratory tract infections in nose, sinuses or upper throat. Symptoms   of the virus include fever, cough, and shortness of breath.

The Department has   developed a COVID-19 guideline. This COVID-19 planning guidance was developed   based on traditional infection prevention and occupational hygiene practices.   It focuses on the need for employers to implement the following:

Engineering controls - isolating employees from work-related hazards,   installing high-efficiency air filters, increasing ventilation rates in the   work environment and installing physical barriers such as face shields to   provide ventilation.  

Administrative controls – these controls require action by the employee and  employer. Examples of administrative controls include: encouraging sick   workers to stay at home; minimizing contact among workers, clients and   customers by replacing face-to-face meetings with virtual communications e.g.   conference calls, Skype, etc.; minimising the number of workers on site at   any given time e.g. rotation or shift work; discontinuing nonessential local   and international travel; regularly check travel advice from the Department   of Health at: www.health.gov.za; developing emergency   communications plans, including a task team for answering workers' concerns   and internet-based communications, if feasible, providing workers with   up-to-date education and training on COVID-19 risk factors and protective   behaviours (e.g. cough etiquette and care of PPE); training workers who need   to use protective clothing and equipment on how to put it on, use/wear it and   take it off correctly, including in the context of their current and   potential duties. Training material should be easy to understand and  available in the appropriate language and literacy level for all workers.

Safe Work Practices – these include procedures for safe and proper work used   to reduce the duration, frequency, or intensity of exposure to a hazard.   Provide resources and a work environment that promotes personal hygiene. For   example, no-touch refuse bins, hand soap, alcohol-based hand rubs containing   at least 70 percent alcohol, disinfectants, and disposable towels for workers   to clean their hands and their work surfaces, regular hand washing or using   of alcohol-based hand rubs, and display handwashing signs in restrooms.

Personal Protective Equipment (PPE) – while engineering and administrative  controls are considered more effective in minimizing exposure to SARS-CoV-2,  PPE may also be needed to prevent certain exposures. Examples of PPE include:  gloves, goggles, face shields, face masks, gowns, aprons, coats, overalls,   hair and shoe covers and respiratory protection, when appropriate. Employers   should check the NICD website regularly for updates about recommended PPE.

 Employers and workers   should use this planning guidance to help identify risk levels in workplace   settings and to determine any appropriate control measures to implement.   Additional guidance may be needed as COVID-19 outbreak conditions change. In   the event that new information about the virus, its transmission, and impact,   becomes available you may have to modify your plans accordingly.

 For employers who have   already planned for influenza outbreaks involving many staff members, planning   for COVID-19 may involve updating plans to address the specific exposure   risks, sources of exposure, routes of transmission, and other unique   characteristics of respiratory infections (i.e., compared to influenza virus  outbreaks).

 In the case of suspected   exposure contact the coronavirus hotline in South Africa: 0800 02 9999

The Department of Employment   and Labour will for now keep its labour centres opened. The Department   has put in place a Crisis Management Team which will be guided by the   Department's business continuity plan. The Crisis Management Team will meet   every day at 09h00 to assess the situation and put measures in place to   promote health and safety of staff and its clients.

The queues at labour centres   and services provided will be managed to adhere to the 100 people not   gathering in one place at the same time.

For more information contact:

  

Teboho Thejane

  

Departmental Spokesperson

  

082 697 0694

  

Teboho.thejane@labour.gov.za

  

Issued by: Department of Employment and   Labour

As the coronavirus spreads, employers and employees alike are faced with the question of what to do should employees fall ill, need to work from home, or be quarantined.

Labour law experts Aadil Patel and Anli Bezuidenhout of law firm Cliffe Dekker Hofmeyr took a look at some common questions.

When can an employee be dismissed due to the coronavirus?

In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. 

According to the experts, the factors to take into account in considering alternatives to dismissal include: the seriousness of the illness, the period of absence, the nature of the employee's job and whether a temporary replacement may be secured.

During this process, the ill employee should be given an opportunity to make recommendations as well. 

Only once all these processes have been followed and no alternative to dismissal found, may an employer consider dismissal. 

May employers consider retrenchments due to the impact of the coronavirus?

Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements.

"Operational requirements" is defined as requirements based on the economic, technological, structural or similar needs of the employer. 

A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees. 

At this point, the coronavirus is unlikely to trigger an operational need. The recommended period for recovery/isolation is 14 days – this in itself cannot trigger a need to retrench. However, should a large number of employees be infected, an operational need could possibly arise in future. 

What can be done about employees who refuse to come to work?

Employees remain obligated to come to work, unless instructed otherwise by their employers. Employees who refuse to come to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. 

Employees who stay away from work without a valid reason, may face disciplinary action. "We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation," said Patel and Bezuidenhout.

Do employees have the right to work from home? 

Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer's consent. We encourage employees to rather speak to their employers about their concerns.

May employees be required to work from home?

Yes. Working from home may be permitted in the discretion of the employer. This is not always viable but could be considered in a corporate environment.

Should employers consider this option, we recommend that clear guidelines be set for employees. This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.

May an employee's professional or personal travel plans be restricted? 

Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends.

Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers. 

What is an employee's sick leave entitlement?

In terms of section 22 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), the "sick leave cycle" means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment. 

During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. Usually (for an employee who works five days a week) this equates to 30 days' sick leave per 36 months of employment.

What if sick leave is exhausted?

An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, we recommend that authorised unpaid leave be considered, said Patel and Bezuidenhout.

In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (UIA). In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness. 

Must an employee be paid for sick leave? 

Subject to section 23 of the BCEA, an employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and b) on the employee’s usual pay day.

When is an employer not required to pay sick leave?

In terms of section 23 of the BCEA, an employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

What are the basic requirements for a medical certificate?

The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council.

As an employer, what are my obligations?

The Occupational Health and Safety Act 85 of 1993 ("OHSA"), requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees.

For this reason, we recommend that employers adopt contingency plans and communicate with its employees regarding the measures it will adopt in securing the workplace. 

This may include:

• the prohibition of handshakes or physical contact;

• limitation on meetings;

• sufficient supply of hand sanitiser; or

• requiring employees to work from home, should they feel sick in any way.

It may also be necessary to relax the sick leave policy or to permit more flexibility in working arrangements.

As an employee, what are my obligations?

The employee and the employer share the responsibility for health in the workplace. Therefore both the employee and employer must pro-actively identify dangers and develop control measures to make the workplace safe.

For this reason, employees should abide by any policies adopted by the employer to curb the spread of the coronavirus. 

Employees should also inform their employer if they are aware of any risk to the health of their colleagues. 

Courtesy News24.