Liability of the employer in the workplace, where an employee contracts COVID-19

Employer’s COVID-19 Obligations

Written by Precious Mmako, Candidate Attorney, checked by Jordan Dias, Associate and released by Pierre van der Merwe, Partner at Schindlers Attorneys

23 August 2021

EMPLOYER’S OBLIGATIONS

Introduction

COVID-19 is an infectious disease caused by a virus that has previously not been scientifically identified in humans, which emerged during 2019 and was declared a global pandemic by the World Health Organisation in 2020.

Employers have a legal obligation to make sure that a working environment is safe and does not put employees’ health at risk. Employers should perform risk assessments regarding the risks to the health and safety of employees. Employers can regularly compare their assessments with the regulations issued by the government, or the World Health Organisation to see if they do protect employees from the risks arising from COVID-19.

Occupational Health and Safety Act No 85 of 1993

The Occupation Health and Safety Act No 85 of 1993 (“OHSA”) provides for the health and safety of individuals at work. Section 8(1), read with section 8(2)(h) of OHSA, provides for the general duties of employers to their employees as follows:

1. Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees; and
   
2. Enforcing such measures as may be necessary in the interest of health and safety.

In terms of section 38 of the OHSA, any person who contravenes or fails to comply with the provisions provided for in section 38 or wilfully or recklessly does anything at a workplace which threatens the health or safety of any person is guilty of an offence and, on conviction, may be liable to a fine of up to R50,000.00 or to imprisonment for a period of up to one year, or to both a fine and imprisonment.

Consolidated COVID-19 Direction on Health and Safety in the Workplace Issued in terms of Regulation 4(10) of the National Disaster Regulations

The Minister of Employment and Labour issued consolidated directions for employers to prevent the escalation of COVID-19 infections at the workplace. These directions are published under the name “Consolidated COVID-19 Direction on Health and Safety in the Workplace Issued in terms of Regulation 4(10) of the National Disaster Regulations” (“the consolidated directions”).

In terms of the foresaid consolidated directions, some of the administrative measures that an employer must establish and implement are as follows:

1. It must undertake a risk assessment to give effect to the minimum measures required by the Direction taking into account the specific circumstances of the workplace;
   
2. It must take special measures to mitigate the risk of COVID-19 for vulnerable employees in accordance with the Department of Health’s Guidelines to facilitate their safe return to work or their working from home; it must notify all workers of the contents of this Direction and the manner in which it intends to implement it;
   
3. It must notify its employees that if they are sick or have symptoms associated with COVID-19 that they must not come to work and to take paid sick leave in terms of section 22 of the BCEA;
   
4. It must, as far as practicable, minimize the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve social distancing and to limit congestion in public transport and at the workplace;
   
5. If a worker has been diagnosed with COVID-19, an employer must-

(a) Inform the Department of Health and the Department of Employment and Labour; and

(b) Investigate the mode of exposure including any control failure and review its risk assessment to ensure that the necessary controls and PPE requirements are in place; and

(c) Determine the need to temporarily close the affected work area for decontamination using an incident-based risk assessment with due regard to the Department of Health’s Guidelines.

In terms of the foresaid consolidated directions some of the health and safety measures an employer must implement are as follows:

1. Screen any worker when they report for work in order to ascertain if they have any of the symptoms associated with COVID-19;
   
2. Require workers to immediately inform the employer if they experience any of the symptoms while at work.
   
3. If there is evidence that the worker contracted COVI D-19 arising out of and in the course of employment, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993) in accordance with Notice 193 published on 3 March 2020.

In terms of clause 58 of the directions, any contravention of the Direction constitutes a contravention of an obligation or prohibition under OHSA, the offences and penalties provided for in section 38 of OHSA apply.

What future planning steps can an employer take to not be held liable?

In terms of the consolidated directions, some of the measures to ensure health and safety of employees during the national state of disaster are as follows:

1. The employer must keep the workplace well ventilated by natural or mechanical means to reduce the SARS-CoV-2;
   
2. Every employer must check regularly on the websites of the National Department of Health 17, National Institute of Communicable Diseases and the National Institute for Occupational Health whether any specialised personal protective equipment for COVID-19 is required or recommended in any guidelines given the nature of the workplace or the nature of a worker’s duties and the associated level of risk;
   
3. The employer must ensure that there are adequate facili1ies for the washing of hands with soap and clean water; only paper towels are provided to dry hands after washing – the use of fabric towelling is prohibited;
   
4. The workers interacting with the public are instructed to sanitize their hands between each interaction with a member of the public; and
   
5. Surfaces that workers and members of the public come into contact with are routinely cleaned and disinfected.

Conclusion

There are laws and regulations which employers must implement to prevent being held liable if an employee contract COVID-19 in the workplace. Employers must adhere to the provided measures to keep the workplace safe and prevent the spread of COVID-19.

Value

An employer who acts wilfully or recklessly at a workplace that threatens the health or safety of an employee may be held liable if an employee contracts COVID-19 in the workplace. Employers need to apply the measures provided by the regulations in order not to be held liable.