Amid the lockdown imposed in South Africa, the pressure on businesses who are still trading and operating due to being deemed an essential service is going to be immense, particularly small businesses that render essential services. To check whether your business is deemed as an essential services provider, you may refer to the new regulations (hereinafter referred to as (“the regulations”) inserted into the Disaster Management Act 2002 (as amended) and hereinafter referred to as “the DMA”.

The new regulations issued by the Minister of Cooperative Governance and Traditional Affairs, Ms. Nkosazana Dlamini-Zuma published the Government Gazette Regulations No. 11062 (hereinafter referred to as “the Gazette”) on 25th March 2020 and businesses now have no excuse to check whether they fall into the essential services category of businesses who are allowed to remain trading and operational during the lockdown. If they do not fall into the category of essential service providers, and have misidentified themselves as an essential services provider, the consequences for that business would be inclusive but not limited to fines and prosecution.

The role of COIDA and OHSA during the pandemic

If ever there was a time to consider the conditions of the workplace and perhaps rethink and tailor your current policies, not that Employers were not required to previously due so by law under the

Occupational Health and Safety Act 83 of 19995 (hereinafter referred to as “the OHSA Act”), now would be the best, if not only, available time to do so for the foreseeable future. Recent international statistics have shown that it is not only the elderly that is at risk but also the considered young population in some instances, although the death rate is much lower in the latter. The Compensation of Occupational Injuries and Diseases Act 130 of 1993 (hereinafter referred to as “COIDA”) creates a statutory insurance framework, compulsory insurance through which subscribed employers are covered against claims of certain employees who become ill, injured, disabled or died as a result of a workplace-related incident or disease. This means that the diseases contracted within the course and scope of employment may also be covered. From an employer and employee point of view, it is imperative to work together by looking at the duties of employees and employers during the COVID19 pandemic to minimize infections which will lead to fewer claims to COIDA or reports of noncompliance to the OHSA.

Duties of employers

Other than the strict guidelines already enshrined in the OHSA and the COIDA which must be strictly adhere to, the World Health Organization guidelines published (hereinafter referred to as “the WHO guidelines”) has also enabled employers with information and guidelines on an international scale to provide and maintain, as far as is reasonably practicable and possible, a working environment that is safe and without risk to the health of its employees, clients, suppliers and other stakeholders. It is therefore imperative that employers who are operating and trading during the lockdown due to being an essential services provider as prescribed by the new regulations inserted into the DMA exercise reasonable hygiene measures to ensure the safety of people coming into contact with the workplace and those working in the workplace. The virus can be contracted through inhalation of saliva particles which may contain Covid-19 particles and also through the touching of contaminated surfaces as indicated in the WHO guidelines. It is therefore imperative that employers put measures in place to ensure that employees operate in a 1 to 1.5 (recommended) square meters from each other as indicated in the WHO guidelines to endeavour to ensure that employees are as safe and secured as they possibly can be during this period.

Duties of employees

The OHSA also states that employees must practice reasonable care to ensure their health and safety and that of their colleagues as well as their family members when they return from work. All and sundry could be affected by the acts or omissions of the employee if the employee does not practice the reasonable care as described by the WHO guidelines and the OHSA act. These requirements are even more prevalent during this time of the outbreak; employees must ensure that they cooperate with their employers and adhere to the directives issued by employers. Employees must immediately report incidents at the workplace which appear suspicious, such as; where a client, supplier or employee displays flu-like symptoms to enable the employer to act swiftly to ensure that the risk of workplace contamination is minimized. It is imperative that employees note that any  reluctance in this regard may lead to disciplinary action and even summary dismissal. Importantly, non-disclosure of having contracted Covid-19 or symptoms or non-disclosure of a prior positive test may result in prosecution and the person so prosecuted may be subjected to a fine and/or imprisonment.

COIDA Claims and other forms of Sick Leave or Relief Benefit Claims

Employees are able to claim their sick-leave benefits should they fall ill (as a result of Covid-19) as per the normal course in terms of the Basic Conditions of Employment Act 75 of 1997 (as Amended). Furthermore, retrenched employees can claim from the Unemployment Indemnity Fund (UIF) subject to certain requirements. The Minister of Employment and Labour has issued directives in terms of which the Covid-19 Temporary Employer-Employee Relief Scheme (Covid-19 TERS) has been developed to assist employees who become ill in the workplace as a result of Covid-19, to claim relief benefits subject to certain requirements. If an employee contracts Covid-19 in the course and scope of employment, it is advisable that such an incident must be reported either verbally or in writing to the employer immediately in light of the current outbreak. The employer will then follow the process of completing and submitting the required forms to the COIDA Compensation Fund and TERS in respect of illness benefits. With regards to claims, the normal course of claiming in terms of COIDA requirements will apply:

• The claim must be made within 12 months from date of diagnoses;
• The worker must be off sick for more than three (3) days, if not, such an employee must claim from other sick leave benefits such a sick leave fund (In the case of a collective agreement in a specific sector) or accumulated days as per the provisions of the BCEA.

It is important to note that Covid-19 must have been contracted in the workplace, which may be a difficult prospect in light of the current outbreak. The employee will have the onus of proof in this regard. Due to the incubation period of Covid-19 which can be seven (7) to Fourteen (14) days and in light of the strict isolation measures put in place by government, it is not likely that an employee will be off sick for less than three (3) days.

Conclusion

In terms of OHSA, employers are required to as far as is reasonably practicable and possible, cause every employee to be made conversant with the current outbreak and the threat it poses within the context of the workplace as well as how to mitigate those effects. If the business does not provide an essential service the above measures in the workplace will not apply to such businesses as there are strict lockdown regulations to adhere to. Nevertheless, prior to the lockdown, if the business had not educated their employees in respect of health and safety measures needed to be taken since the President declared a state of emergency then the OHSA would apply.   

Written by Hamlet Heneke, Professional Assistant, Attorney, Schoeman Law.