It is with some relief that we have received a Consolidated Direction under Gazette No 43751. This Consolidated Regulation was brought into law on the 1st October 2020. These Directions override all previous Directions and to a large degree are easier to understand and to implement.
If there are less than ten employees that business needs only to apply the measures set out in Direction 12. For employers with over 10 employees, every employer must undertake a risk assessment and must consult with trade unions if there is one or with their Health and Safety Committee established in terms of the OHSA. This plan will include a list of issues including the list of employees, the opening hours, the identification of the vulnerable employees, minimizing the number of workers at the workplace and the protective measures taken. If the employer employs more than 50 employees, they must submit a record of the risk assessment to the Health and Safety Committee and to the Department of Employment and Labour within 21 days of the Direction. It must be remembered the Direction is effective from the 1st October and hence the employers with over 50 employees must submit the risk assessment to the Department by the 22nd October at the latest.
The employer must also disclose to all the workers the content of this Direction and they must require all employees to disclose whether they have health issues, comorbidities or conditions contemplated in the definition of vulnerable employees.
All employees must be told that if they are sick or have symptoms associated with the virus, they must not come to work and they must be given paid sick leave in terms of Section 22 of the Basic Conditions of Employment Act “BCEA”. As far as practical employers must minimize the number of workers at the workplace using structures such as rotation, staggering work hours, shift systems, remote working and or similar measures. The inspectors might also need to temporarily close the affected work area for decontamination. All employers who employ over 50 employees must submit data to the National Institute for Occupational Health about each employees’ vulnerability. They must also supply details of the screening of employees who are symptomatic and the details of the employees who test positive. Once again, we must reiterate that all employers must have a minimum of 1.5 meters between workers but if not practical then physical barriers have to be placed between the work stations or erected on work stations. All the PPE must be supplied free of charge.
Every employer must take measures to screen workers and determine whether they suffer of any of the symptoms. If a worker is showing evidence of the symptoms they must be provided with a surgical mask and arrangements must be made for the worker to be transferred to a health facility. Thereafter they must assess the risk of transmission and disinfect the area.
The employee must be placed on paid sick leave but if the paid sick leave is exhausted they must make an application for the temporary employer relief scheme. It is noted that this is slightly different to the normal emergency UIF payments. The employer cannot discriminate against any employee on the grounds of having tested positive. The employer must lodge a claim of compensation in terms of the Compensation for Occupational Injuries and disease act. The worker will only be allowed back to work after the diagnosis without viral testing if the worker has completed the mandatory ten days of isolation. However, the worker can come back to work earlier if the worker has undergone a further medical evaluation confirming fitness to work. Any other employee who has had minimal exposure to the diagnosed worker may continue working using a cloth mask. If high risk, the worker must remain in quarantine for 7 days and all other workers must be monitored for the 10 days thereafter. All employers must supply adequate facilities for washing hands with soap and water and paper towels. The employers are obliged to ensure that the workplace is well ventilated by natural or mechanical means. Small businesses with 10 employees or less must develop a basic plan for phasing in the return of its employees taking into account comorbidities and age. Small businesses must provide cloth masks or require an employee to wear some form of cloth covering over their mouth and nose whilst at work.
If an employee refused to perform any work there must be reasonable justification for this. The employee is obliged to notify the employer either personally or through a health and safety representative of his or her refusal and the reason for the refusal. Every employer in turn will consult with the Compliance Officer and the Healthy and Safety Committee and if no committee with the representative. The employer and the employee should try and resolve the matter internally but if they are unable to resolve it then they must notify an inspector of the issue. If there is no reasonable explanation by the employee then the employee has to return to work or could face possible action and certainly no salary for the down time. If the employee is still of the opinion that he or she should not return to work the employee is obliged to refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). The CCMA will sort this matter out as soon as possible.
It is submitted that certain of these disputes could easily be avoided if the parties discuss the employees concern about the health and safety. It does state that no employer may make any deduction from an employee’s remuneration or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide in terms of these Directions. This refers to PPE and not to the refusal to work. It must also be mentioned that there are various Sectoral and or Industrial Associations who would develop their own guidelines in conjunction with the Department of Health.