Since the nationwide lockdown was implemented and subsequently extended, South African Employers and Employees, save for those categorized as Essential Services, have been unable to attend at their workplaces to continue trading and rendering services. After approximately 6 weeks, the South African Government commenced implementing a gradual uplifting of the lockdown known as level 4 in a bid to ensure some economic activity be re-introduced in order to prevent the economy from a complete recession and of course to save as many jobs as possible.

Level 4 has strict guidelines that must be adhered to by all South Africans or persons living or working in South Africa in various aspects. The focus of this piece however will be what the health and safety regulations under level 4 are as it relates to certain businesses and employers opening their doors to trade again, and what their obligations are in terms of health and safety as well as what their obligations are in terms of protecting their employees and customers in terms of prevention of the spread of the COVID-19 virus.

In that regard, the Department of Employment and Labour has issued formal directives and regulations (hereinafter referred to as “the Directives”) requiring 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 its Employees and to take such steps as may be reasonably practicable to eliminate or mitigate the hazard or potential hazard of contracting COVID-19 or the spread of COVID-19. The Directives further require Employers, to ensure, as far as is reasonably practicable, that all persons who may be affected by their trading (such as customers, clients, suppliers or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety. This obligation also applies to self-employed persons, for example, plumbers or electricians whose working activities bring them into contact with members of the public.

Social Distancing and Rotational Employee Attendance in the Workplace

The Directives state that every Employer must arrange the workplace in a manner which would ensure minimal contact between Employees as far as practicable, and with the basic minimum distance allowed between Employees being one and a half metres (1.5). These social distancing measures must be implemented whilst Employees are working at their workstations, whether those workstations are in open plan circumstances or communal office circumstances, the social distancing of 1.5 metres between Employees must be adhered to. Depending on the circumstances of the workplace or the nature of the sector, the minimum distance may need to be longer.

Employers must ensure social distancing compliance by not seating Employees next to one another but rather for example leaving a desk in between two Employees empty. If it is not possible to arrange work stations to be spaced at least one and a half metres apart, then in terms of the Directives Employers must arrange physical barriers to be placed between work stations or erected on work stations to form a solid physical barrier between Employees whilst they are working

Daily COVID-19 Symptom Screening at the Workplace

The Directives state that every Employer must take measures to screen all their Employees when they report for work daily to ascertain whether they have any of the observable symptoms associated with COVID-19, namely; fever, cough, sore throat, redness of eyes, shortness of breath or difficulty in breathing. The Employer must elect an Employee or Employees to act as Health and Safety Officers to observe and question all Employees daily in respect of whether they are experiencing the aforementioned symptoms. All Employers must also advise their Employees that they are required by law to report whether they suffer from any of the following additional symptoms, namely; body aches, loss of smell, loss of taste, nausea, vomiting, diarrhea, fatigue, weakness or tiredness; and further inform their Employees that they are required by law to immediately inform the Employer if they experience any of the aforementioned symptoms whilst working or even before attending at the workplace upon screening before reporting for duty.

What are the Employer’s obligations in terms of the supply of masks, sanitizers and personal protective equipment?

In terms of the Directives, every Employer must free of charge and at no cost to the Employee, ensure that there are sufficient quantities of hand sanitizer at the entrance to the workplace based on the number of Employees or other persons such as members of the public who may need to access the workplace for various reasons. The hand sanitizer must by law contain 70% alcohol content and be in accordance with the recommendations in respect of hand sanitizers issued by the Department of Health.

Furthermore, if an Employee interacts with the public whilst at work or in the workplace, the Employer must provide the Employee with sufficient supplies of hand-sanitizer at that Employee’s workstation, office, boardroom or communal area for both the Employee and the person with whom the Employee is interacting.

In addition to sanitizer being for the cost of the Employer, masks will also be for the cost of the Employer. Specifically, every Employer must provide each of its Employees, free of charge, with a minimum of two (2) cloth masks, which comply with the requirements set out in the Guidelines issued by the Department of Trade, Industry and Competition.

Every Employer must ensure that Employees are informed, trained and instructed as to the correct use of cloth masks. It is the Employer’s obligation, in addition to providing the masks, to make appropriate arrangements for the washing, drying and ironing of cloth masks. The Employer’s further obligations include keeping the workplace well ventilated by natural or mechanical means.

What should an Employer do if an Employee presents COVID-19 symptoms whilst at the workplace?

If an Employee presents COVID-19 symptoms, or advises the Employer of these symptoms, the Employer cannot permit the Employee to enter the workplace or report for work. Should the Employee present COVID-19 symptoms whilst at the workplace already the Employer must by law follow the following steps:

1. isolate the Employee from all other Employees or communal Employee areas;
2. provide the Employee with a FFP1 surgical mask;
3. arrange for the Employee to be transported, in a manner that does not place other Employees or members of the public at risk, either to be self-isolated or for a medical examination or testing;
4. assess the risk of transmission to other Employees whilst the Employee was at the workplace by disinfecting all areas of the workplace the Employee had access to as well as the Employee’s workstation or office;
5. refer all Employees who may be at risk due to contact with the Employee who presented COVID-19 symptoms for screening and take any other appropriate measure to prevent possible transmission;
6. ensure that the Employee is tested or referred to an identified testing site;
7. place the Employee on paid sick leave in terms of section 22 of the Basic Conditions of Employment Act 75 of 1997 or if the Employee’s sick leave entitlement under the section is exhausted, make application for an illness benefit in terms of the COVID-19 Temporary Employer Employee Relief Scheme (TERS);
8. ensure that the Employee is not discriminated against on grounds of having tested positive for COVID-19 in terms of section 6 of the Employment Equity Act, 1998 (Act No. 55 of 1998);
9. if there is evidence that the Employee contracted COVID-19 as a result of occupational exposure, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act 30 of 1993.

Conclusion

The Directives must be adhered to and failure by an Employer or an Employee to adhere to the Directives may result in penalties and criminal prosecution in terms of the Occupational Health and Safety Act 85 of 1993. Businesses with more than 500 Employees are subject to more stringent monitoring processes, inclusive but not limited to, submitting a record of their risk assessment and written policies to the Department of Employment and Labour whereas smaller businesses have more relaxed rules in terms of the Directives in that they do not need to submit records to the Department however they still need to comply with the Directives in terms of health and safety as it concerns their Employees as set out hereinabove. For assistance with risk assessment strategies, screening processes by way of symptom questionnaires for compliance as well as health and safety management of the workplace contact Schoemanlaw Incorporated.

Written by Fadia Arnold, Senior Associate Attorney, Employment Law, Schoeman Law Inc.