KEY CHANGES TO THE ‘CONSOLIDATED DIRECTION ON OCCUPATIONAL HEALTH AND SAFETY MEASURES IN CERTAIN WORKPLACES’ November 2020

By ANDI MICHALOW AND LUNGELO MKHIZE , Published in Employment Law - Feature

On 1 October, the Minister of Employment and Labour published revised Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces for purposes of guiding employers in handling COVID-19 in the workplace.

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While employers are familiar with the previous Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, published on 4 June 2020, the Consolidated Directions place important and additional obligations on employers and employees who have returned to work.

Employers with more than 50 employees

In terms of the Consolidated Directives, an employer of more than 50 employees (it was previously employers of more than 500 employees) must submit a record of its risk assessment, together with a written policy concerning the protection of the health and safety of its employees from COVID-19, as contemplated in s7(1) of the Occupational Health and Safety Act, 1993 (OHSA) to:

  • its health and safety committee established in terms of s19 of the OHSA; and
  • the Department of Employment and Labour within 21 days of the commencement of the Consolidated Directions (that is, by 21 October 2020).

Furthermore, the obligation to provide screening and testing data now applies to employers with more than 50 employees. These employers must submit the following categories of data to the National Institute for Occupational Health in the manner set out in the National Department of Health Guidelines:

  • each employee's vulnerability status for serious outcomes of a COVID-19 infection;
  • details of the COVID-19 screening for employees who are symptomatic;
  • details of employees who test positive for COVID-19;
  • the number of employees identified as high-risk contacts within the work-
  • details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.

The data concerning each employee's vulnerability status must be submitted once in respect of each employee, and the remaining data must be submitted as soon as possible before Tuesday of each week in respect of the data collected in the previous calendar week commencing Sunday.

Employers must also inform their employees of the submission of this data and advise them of their adherence to the Protection of Personal Information Act, 2013.

Furthermore, employers may submit the data to an employer's association if the association has entered into an agreement with the National Institute for Occupational Health to receive, process and submit the data to the Institute, and the association has undertaken to submit the data on behalf of the employer.

Reduction in the mandatory isolation period

The mandatory self-isolation and self-quarantine period for employees has been reduced from 14 days to 10 days. Health workers with high risk exposure must remain in quarantine for seven days, which can, by agreement with the worker, be reduced to five days.

Refusal to work due to exposure to COVID-19

Employees are still allowed to refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee, or to a health and safety representative, to pose an imminent and serious risk of their exposure to COVID-19.

In these circumstances, an employer who has been notified of an employee's refusal to work must, after consultation with the compliance officer and any health and safety representative, endeavour to resolve any issues that may arise from the employee's right to refuse to work.

The Consolidated Directions place an extended obligation on employers to consult with a health and safety committee or, if there is no committee, a health and safety representative in an attempt to resolve the employee's refusal. Furthermore, if the matter cannot be resolved internally, employers must notify an inspector within 24 hours and advise the employee, and all other parties involved in resolving the issue, that an inspector has been notified. Furthermore, employers must comply with any prohibition issued by an inspector in terms of s30 of the OHSA.

Employers should take cognisance of the fact that employees may only refuse to work if they can establish that they have a "reasonable justification" to refuse to do so. While it is unclear what a "reasonable justification" means and what the threshold is, it is likely to be, at the least, an objective inquiry, and a blanket refusal will not be found to be reasonably justifiable. In the absence of an employee putting forward a reasonable justification, and once the procedures described have been followed, employers would be entitled to treat a refusal to work as misconduct in the form of insubordination and employers' disciplinary codes and procedures would apply.

It is important for employers to familiarise themselves with these changes and ensure compliance in the workplace.

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Michalow is an Associate and Mkhize a Candidate Attorney with Fasken (South Africa). The article was supervised by Fasken Counsel Nigel Carman.