coronavirus health and safety on the workplace

ARE YOU LEGALLY COMPLIANT?

Coronavirus Health and Safety in the Workplace – Are you legally compliant in terms of the Health and Safety Act? 

This article discusses the obligations of an employer andf employee in terms of the Health and Safety Act and claims against the Compensation Fund in terms of the Compensation for Occupational Health injuries and Diseases Act

coronavirus health and safety in the workplace

Employer’s obligations – what does the law in South Africa say?

  • Employers have a legal duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees and anyone else who may be affected by the employer’s business, including customers, suppliers, visitors and members of the public.
  • Employers are required to undertake risk assessments regarding the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. In doing so, employers must consider whether their existing arrangements for protecting employees and visitors take account of the risks arising from Covid-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the State, or the WHO. This would include identifying the likelihood of employees contracting CoVID-19 whilst at work and appropriate measures to control that risk.
  • If an employer fails to implement appropriate measures, it may leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in danger.
  • Within the context of Covid-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace.
  • Practically, the employer can ensure a healthy working environment by ensuring that the workplace is clean and hygienic, promoting regular hand-washing by employees, promoting good respiratory hygiene by employees and keeping employees informed on developments related to Covid-19.

Employees Obligations

  • Notwithstanding the above, employers and employees need to remember that employees also have an obligation in respect of the recent Coronavirus outbreak to abide by any policies adopted by the employer to limit the spread of the Coronavirus and inform their employer if they have or suspect they may have been infected with the Coronavirus or are aware of any risk to the health of their fellow employees.
  • In this regard, an employee would be in breach of their obligations if they refused to take leave knowing that they have or may have the Coronavirus. Likewise, an employer would be in breach of its obligations in terms of the Occupational Health and Safety Act 85 of 1993 in failing to provide its employees with a safe working environment. It is imperative to note that an employee in this instance, may refuse to attend at his/her place of work if they feel that the working environment is unsafe.

The Compensation for Occupational Injuries and Diseases Act (“COIDA”)

  • COIDA protects employers from liability where employees contract an illness at work / during the course and scope of their employment. Such employees ordinarily claim from the Compensation Fund without having to prove the employer’s negligence.
  • However, where an employer has been negligent the employee may receive increased compensation and the cost of same may be for the employer’s account in the form of increased assessment rates.
  • A Government Notice was issued on 20 March 2020, detailing the ability to claim in terms of COIDA, which also defines when a claim can be made and what the process is.  See the attachment

Indemnity by Employee in favour of Employer

  • An Employer cannot contract out of its obligations in terms of the OHS Act, being the legal duty to maintain a healthy and safe working environment. The reason is that no person can contract out of legislation to the extent it is to the detriment of a party.
  • It is therefore not possible for an employee to indemnify an employer against instances such as contracting the coronavirus as a result of the employer failing to comply with its duties in terms of the OHS Act and in respect of Covid 19, failing to take steps to ensure a clean working environment, screening, distancing etc.
  • In addition, the above is not necessary, as in the event that the employee does contract the virus at the workplace, COIDA applies and a claim can be made against the fund.
  • An employee could only indemnify the employer to the extent that the employee has an obligation to the employer – which as set out above, would be for example not washing their hands or not notifying the employer.

Written by Cherine Hoffman
Director: CH Legal Consulting