The Minister of Employment and Labour has published a new ‘Consolidated Direction’ (Government Gazette no. 43751 dated 1 October 2020) to prevent and combat the spread of Covid-19 in the workplace. It replaces the Consolidated Direction published on 4 June 2020.
The Consolidated Directions came into force on the 1st October 2020 and was signed off by the Minister of Employment and Labour on the 28/9/2020. It is important to see that the definition of worker has been specifically used to include employees but is there to protect all persons who work in a workplace.
The Direction does not apply to workplaces excluded from the OHSA and if there are less than ten employees, they only need to apply the measures set out in Direction 12 of the Directions. For employers over ten employees, every employer must undertake a risk assessment and must consult with trade unions if there is one for the Health and Safety Committee established in terms of the OHSA.
This plan will include a list of issues including the list of employees, the opening hours, the identification of the vulnerable employees, minimising the number of workers at the workplace and protective measures are taken. If the employer employs more than 50 employees, they must submit a record of the risk assessment to the Health and Safety Committee and the Department of Employment and Labour within 21 days of this Direction.
They must also disclose to the workers the content of these Directions and they must require all employees to disclose whether they have health issues, comorbidities or conditions contemplated in the definition of vulnerable employees. All employees must be told that if they are sick or have symptoms associated with the virus they must not come to work and they must take paid sick leave in terms of Section 22 of the BCEA.
As far as practical they must minimize the number of workers at the workplace such as rotation, staggering work hours, shift systems, remote working or similar measures. All employees should be provided with information through leaflets and notices at the workplace. If a worker is diagnosed with the virus they must inform the National Institute of Occupational Health, their Compensation Commissioner and they must investigate the exposure.
They need to also determine the need to temporarily close the affected work area for decontamination.
All employers who employ over 50 employees in the workplace must submit data to the National Institute for Occupation Health about each employees vulnerability, the details of the screening of symptomatic employees and the details of employees who test positive. They must identify what number of employees are high risk and the details of the first infection and the outcomes of testing positive.
All employers must have a minimum of one and a half metres between workers but if not practical then barriers have to be placed between work-stations or erected on work stations. All PPE must be given free of charge.
Every employer must take measures to screen workers and determine whether they suffer from any of the symptoms. If a worker is showing symptoms they must be provided with a surgical mask and arrangements must be made for the worker to be transported to a health facility. They must assess the risk of transmission and disinfect the area. The employee must be placed on paid sick leave but if paid sick leave is exhausted, they must make an application for a temporary employer relief scheme.
The employee must not be discriminated against on the grounds of having tested positive and if the worker contracted Covid 19 they must lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Disease Act. If the worker has been diagnosed, they can only allow the worker to return to work without viral testing if the worker has completed the mandatory ten days of isolation.
If the worker has undergone a further medical evaluation confirming fitness to work, that worker can come back to work earlier.
If a worker has been in contact in the workplace with another worker who has been diagnosed, the employer must assess the worker’s exposure, if it’s a low risk the employer may permit the worker to continue working using a cloth mask. If high risk, the worker must remain in quarantine for 7 days and all other workers must be monitored for 10 days.
The employer must give adequate facilities for washing hands with soap and water and paper towels. Every employer must try and ensure that the workplace is well ventilated by natural or mechanical means.
Small business with 10 employees or less must develop a basic plan for phasing in the return of its employees taking into account comorbidities and age. Again, all employers must provide cloth masks or require an employee to wear some form of cloth covering over their mouth and nose while at work. All employees must be provided with hand sanitizer, soap and clean water to disinfect their hands.
In an employee refuses to perform any work, there must be a reasonable justification for this. The employee must as soon as reasonably practicable notify the employer either personally or through a health and safety representative of the refusal and the reason for the refusal. Every employer in turn will consult with a Compliance Officer and the Health and Safety Committee and if no committee with a representative. The matter should be resolved internally but if not must notify an inspector of the issue.
No person may threaten or take any action against a person because that person has exercised or intends to exercise the right in terms of this Direction. No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work as contemplated in this section. However, it is argued that the employee must have justifiable grounds for refusing to work in terms of the non-adherence by the employer of the Directions. If there’s a dispute the employee may refer the dispute to the CCMA. It is however suggested that should the employer be at issue with the employee then the employee must be encouraged to refer the matter to the CCMA to sort this out as soon as possible.
Issued by Michael Bagraim, MP DEPUTY SHADOW MINISTER FOR EMPLOYMENT AND LABOUR & Member of Parliament. Document posted on Graskop Ratepayers group by Johan Ligthelm.