On 1 October 2020 the Minister of Employment and Labour published a new consolidated COVID-19 Direction on Occupational Health and Safety in the Workplace (Directive) which replaces the Directive that was published on 4 June 2020. Please refer to our previous newsflashes setting out a summary of the previous Directives here and here.
The Directive maintains much of what has been published in previous directives but it includes some additional new obligations on employers and employees who have resumed working in the workplace under Alert Level 1. These obligations on employers and employees are in addition to and not as a substitute for the general obligations in terms of the Occupational Health and Safety Act, 1993 (OHSA).
The Directive consolidates all developments to date pertaining to COVID-19 and the workplace from sources including the National Department of Health (NDOH) and the World Health Organisation.
We set out below a brief description of some of the relevant changes.
Risks assessments and plans for protective measures
The requirement for all employers to undertake a risk assessment and to develop a workplace plan based on that assessment remains. The plan must describe the protective measures that have been put in place for the phased return of employees to the workplace.
The workplace plan now also needs to include a description of the procedure that the employee would need to follow in the event that an employee wishes to exercise his / her right of refusal to work in terms of clause 14(1) of the Directive.
It is now necessary for all employers who employ more than 50 employees to submit a record of their risk assessment together with a written policy relating to the protection of employees' health and safety from COVID-19 in terms of section 7(1) of OHSA to (i) its health and safety committee; and (ii) the relevant Provincial Chief Inspector at the Department of Employment and Labour via email by 21 October 2020.
Employers must now require employees to disclose whether they have any health issues, comorbidities or conditions that make them especially vulnerable to COVID-19 and the employer must then take special measures to mitigate the risk of COVID-19 for those vulnerable employees.
In addition to the obligations on all employers in terms of the previous directive, all employers who employ more than 50 employees in a workplace must now submit certain categories of data to the National Institute for Occupational Health (NIOH). The following categories of data must be submitted electronically to [email protected] or by means of the online platform:
- each employee’s vulnerability status for serious outcomes in the event of a COVID-19 infection;
- the details of the COVID-19 symptom screening data of employees who are symptomatic;
- the details of those employees who test positive for COVID-19;
- the number of employees identified as high-risk contacts and the number of employees who have been quarantined as a result of exposure to another employee who has tested positive for COVID-19; and
- the details related to the post-infection outcomes of those employees who tested positive, including the return to work assessment outcome.
The vulnerability status of employees must be provided once in respect of each employee but the remaining data must be submitted on a weekly basis, as soon as possible before Tuesday in respect of the data that was collected in the previous week beginning on the Sunday. The data may be submitted by an employer via an employers’ association if the association has entered into an agreement with the NIOH to receive, process and submit the data to the NIOH and the association has undertaken to submit the data on behalf of the employer.
Employers have a duty to inform employees that their personal information will be submitted to the NIOH in accordance with the employer’s legal obligations and that the NIOH has undertaken to comply with the provisions of the Protection of Personal Information Act, 2013.
Previously employers were obliged to report each instance of an employee testing positive for COVID-19 to the NDOH by way of the COVID-19 hotline. These positive cases must now be reported to the NIOH electronically, as discussed above.
The Directive also requires employers to inform the Compensation Commissioner when an employer is diagnosed with COVID-19 in the workplace, in accordance with the Directive on Compensation for Workplace-acquired Novel Corona Virus Disease.
The obligations in relation to symptom screening remain the same as in the previous directives save for the fact that when an employee self-isolates or is required to quarantine after an incident of high risk exposure to another person with COVID-19, this quarantine period has been reduced from 14 days to 10 days. In the case of low risk of exposure the employee must be monitored for symptoms for 10 days as opposed to 14 days.
Sanitizers, disinfectants and washing of hands
The requirements for alcohol-based sanitizer (at least 70% alcohol content) remains the same as previously directed, but now surface disinfectants used in the workplace must be in accordance with the recommendations of the NDOH.
Employers continue to remain obliged to provide cloth masks to their employees (two per employee) but these must now comply with the Recommended Guidelines Fabric Face Masks.
More limited obligations still apply in relation to employers with less than 10 employees. In addition, the employer must now contact the relevant provincial inspectorate (and not the general COVID-19 hotline number) for instructions when an employee presents with symptoms at work.
Refusal to work due to exposure to COVID-19
The previous directive introduced a method by which an employee can refuse to 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 exposure to COVID-19. In such circumstances, the employer is under a duty to attempt to resolve any issue that may arise from the exercise of such right, in consultation with the COVID-19 Compliance Officer and any health and safety committee or health and safety representative.
A further reporting obligation has now been included in the latest Directive in circumstances where the matter cannot be resolved internally. In such cases the employer has an obligation to notify an inspector of the issue within 24 hours and to advise the employee and all other parties involved in resolving the issue that an inspector has been notified. The employer is further required to comply with any prohibition issued by the inspector in terms of section 30 of the OHSA. Such a notice may be issued by the inspector in the event that, inter alia, the inspector is of the opinion that any act threatens or is likely to threaten the health and safety of any person.