Important developments impacting occupational health and safety in the wake of COVID-19

In this past week, the National Disaster Act Regulations were published and relief provided for small and distressed employers in terms of the UIF Fund, for example, a reprieve where such employers could apply to be exempted from making contributions to the Fund. It also provides benefits for employees who are required to self-isolate for a 14-day period. 

On 20 March 2020, two further important steps were taken by the Minister of Employment and Labour, namely:

1. an appeal to employers to take guidance from the Hazardous Biological Agents Regulations in terms of the Occupational Health and Safety Act, 85 of 1993 (the OHS Act); and
2. a Notice issued by the Compensation Commissioner in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993, as amended (COIDA), making COVID-19 a compensable occupational disease if contracted by an employee arising out of and in the course of his or her employment (occupationally acquired COVID-19)

The Hazardous Biological Agents Regulations

To whom does it apply?

It normally applies to those employers whose business it is to produce, process, use, handle, store or transport a hazardous biological agent (“HBA”) in the normal course of business. It is an incidental measure where an event occurs that does not involve a deliberate intention to work with an HBA, but where the potential to result in inadvertent exposure occurs. 

These Regulations, in the same way as the OHS Act, do not apply to the mining industry as those employers are covered by different legislation. The Minister of Mineral Resources and Energy can declare that any provision of the OHS Act or regulation will apply, but this would be unprecedented. 

What type of workplaces fall under the Regulations?

Workplaces where an HBA would normally be encountered are:

• in-food production plants
• sewerage purification plants
• where there is contact with products of an animal origin
• diagnostic laboratories etc.

In relation to other types of workplaces, these Regulations have incidental application. 

What is an HBA?

It includes different types of viruses, bacteria and parasites. The “coronaviridae” is included under the category of viruses. 

What are some of the relevant components of the Regulations of use to employers combatting the spread of COVID-19? 

The nature of many businesses is such that work cannot be performed remotely. In these instances, the focus is on reducing the role of the virus spreading.

These Regulations are useful, for example, the requirement to share information and provide training in consultation with health and safety committees, raising awareness of the risks of an HBA, adherence to workplace instructions, provision of appropriate personal protective equipment (PPE), adherence to guidelines governing best practice around hygiene and health. 

The mechanism of the risk assessment is critical to identify areas of work that pose a risk of contamination and to determine how those risks might be eliminated, controlled or reduced. 

Notice on Compensation for Occupationally-Acquired Coronavirus Disease (COVID-19) under COIDA (the Notice)

The Notice extends compensation under COIDA to occupationally acquired COVID-19 if it is contracted by an employee arising out of and in the course and scope of his/her employment.

What test is applied to establish an occupationally-acquired COVID-19 diagnosis?

The following factors have relevance:

• occupational exposure to a known source of COVID 19;
• a reliable diagnosis of COVID-19 per the World Health Organization guidelines;
• an approved official trip and travel history to countries and/ or areas of high risk for COVID-19 on work assignments;
• a presumed high-risk work environment where transmission of COVID-19 is inherently prevalent; and
• a chronological sequence between the work exposure and the onset of the symptoms.

The Notice is aimed primarily at employees who are engaged in very high risk or high risk occupations. The categories set out in the Notice are as follows:

• Very high risk occupations include healthcare workers including doctors, nurses and hospital staff, healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients and morgue workers involved in performing autopsies etc.
• High exposure risk occupations include healthcare delivery and support staff, medical transport workers and mortuary workers.
• Medium risk occupations involve those persons who require frequent close contact (within two meters) of other persons who may be infected with COVID-19.

Low risk occupations involve persons who do not require contact with other persons known to be or suspected to be infected by COVID-19.

However, the emphasis remains on whether or not the employee suffered an occupationally-acquired case of COVID-19.

The overall test for benefits is whether there is a confirmed diagnosis of temporary total disablement, for a period not exceeding 30 days, or permanent disablement. 

What does the employer have to pay?

• The employer is obliged to pay the first three months compensation and thereafter seek a recoupment from the Compensation Fund or recognised mutual association. There are limits that apply.
• Sick leave entitlements under the BCEA would still apply.
• UIF sick benefits remain a separate entitlement.

DISCLAIMER:
The Employment Survival Guide is an informative guide covering a number of topics, which is being published purely for information purposes and is not intended to provide our readers with legal advice. Our specialist legal guidance should always be sought in relation to any situation. This version of the survival guide reflects our experts’ views as of 25 March 2020. It is important to note that this is a developing issue and that our team of specialists will endeavour to provide updated information as and when it becomes effective. Please contact our employment team should you require legal advice amidst the COVID-19 pandemic