On 4 June 2020, the Department of Employment and Labour issued the consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (updated Directive) to replace the Direction on Occupational Health and Safety Measures in Certain Workplaces issued on 29 April 2020 (previous Directive). The updated Directive imposes additional obligations on businesses and institutions, restates existing obligations in terms of the Regulations, as amended, issued under section 27(2) of the Disaster Management Act, 2002 (Regulations), provides additional guidelines and in some instances removes certain duties. Below we have set out some key changes and obligations which should be considered by employers.

Please refer to our previous newsflashes setting out a summary of the previous Directive and Regulations here.

Protection for vulnerable employees

The updated Directive now includes an obligation on employers to take special measures to mitigate the risk of COVID-19 for persons considered as vulnerable employees in line with the requirement under the Regulations. In this regard, the employer must facilitate the safe return to work of vulnerable employees or allow them to work from home. Vulnerable employees are those employees who are over the age of 60 years old or who have a known or disclosed health issue or comorbidities or other condition that places them at a higher risk of complications or death if infected with COVID -19.

Employees' right to refuse to work

The updated Directive introduces the right for employees to refuse to perform any work where 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 (Right of refusal). Such employee will be required to notify the employer personally or through the health and safety representative, as soon as is reasonably practicable, of the refusal and the reasons relating thereto.

The employer must after consultation with the compliance officer and any health and safety committee endeavour to resolve the issue that has resulted in the employee exercising the Right of refusal. Such employee may not be dismissed, disciplined, prejudiced or harassed and no person may threaten to take action against the employee for exercising this Right of refusal. An employee may refer a dispute in relation to the exercise of this Right of refusal to the CCMA.

Risk assessment and workplace plan

As already stated in the Regulations, all employers should undertake a risk assessment before commencing operations and develop a plan that outlines protective measures in place for the phased return of its employees, which shall be available for inspection.

The requirement for an employer who employs more than 500 employees to submit a record of its risk assessment together with a written policy regarding the protection of employees from COVID-19 to (i) its health and safety committee and (ii) the Department of Employment and Labour (Department) remains. However, such documentation must be submitted to the Department within 21 days of the commencement date of the Updated Directive (the commencement date being 4 June 2020).

The Updated Directive requires that all employers (not only those with more than 500 employees) consult (i) any representative trade union, and (ii) health and safety committee; or (iii) in the absence of such committee, a health and safety representative or employee representative, on the workplace plan. The workplace plan should include the following, which corresponds with some of the requirements as set out in the Regulations, for the phased return of employees to the workplace:

• the date that the workplace will reopen and opening hours;
• a list of employees permitted to return to work and those who are required to work from home;
• identification of vulnerable employees;
• the plan and timetable for the phased-in return of employees to the workplace;
• ways of minimizing the number of workers at the workplace at any one time, through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve social distancing and to limit congestion in public transport and at the workplace;
• the protective measures to be taken in terms of the updated Directive and any sectoral guideline to get the workplace COVID-19 ready;
• daily screening measures for the daily screening of employees for COVID-19 symptoms and the screening of clients, contractors and visitors to the workplace; and
• the details of the COVID-19 compliance officer.

Small businesses

The updated Directive places the following additional obligations on small businesses, which employ 10 or less employees, to:

• develop a basic plan for phasing in the return of its employees taking into account those that are able to work remotely and those over the age of 60 years or who have comorbidities; and
• implement other measures indicated by a risk assessment of the workplace including measures applicable where the public have access to the workplace.

Duties of compliance officer

The updated Directive imposes additional obligations on the compliance officer that he/she shall be responsible for, including overseeing the implementation of the workplace plan and overseeing adherence to the health and safety measures established in the workplace to give effect to the requirements of the updated Directive which includes the appointment of employees to perform this function if the employer has more than one workplace.

Additional measures in the event that a worker is diagnosed with COVID-19

The updated Directive provides that in the event that a worker has been diagnosed with COVID-19, the employer will need to determine the need to temporarily close the affected work area for decontamination using an incident based risk assessment with due regard to the Department of Health's guidance note for workplaces in the event of identification of a COVID-19 positive employee referred to in Annexure A of the updated Directive.

Additional conditions have been included in the updated Directive that must be met before allowing an employee who has been diagnosed with COVID-19 and isolated in accordance with the Department of Health's guidance note on clinical management of suspected or confirmed COVID-19 disease (referred to in Annexure A of the Updated Directive), to return to work, which include that the employee:

• must have completed the mandatory 14 days of self-isolation; and
• must wear a surgical mask for 21 days from date of diagnosis.

Before returning to work the employee no longer requires a medical certificate certifying that they have tested negative for COVID-19 but rather confirming fitness for work. In addition, if an employee has had contact with another employee that has been diagnosed with COVID-19, the employer is required to assess the exposure in accordance with the Department of Health's guidelines for symptom monitoring and management of essential workers for COVID-19 related infection and the guideline: Clinical management of suspected or confirmed COVID-19 disease (referred to in Annexure A of the updated Directive) to ascertain whether the exposure carries high or low risk of transmission between the employees.

The employer may, where there is low risk of exposure: (i) permit the employee to continue working using a cloth mask complying with standard precautions; and (ii) monitor the employee's symptoms for 14 days from the first contact. Where there is high-risk of exposure: (ii) the employee must remain in quarantine for 14 days; and (ii) the employer must place that employee on paid sick leave or if the employee's sick leave entitlement is exhausted, make an application for an illness benefit in terms of COVID-19 Temporary Employer Relief Scheme.

Other amendments to and additional health and safety measures

There is no longer an obligation on the employer to make arrangements for the washing, drying and ironing of the cloth masks that it is required to provide to its employees.

Employers are not permitted to deduct from the employee's remuneration or require or permit the employee to make any payment in respect of anything that the employer is obliged to provide to the employee or any measures that the employer is required to implement in terms of the updated Directive.