Memorandum on Covid-19 - Directive issued by the Minister of Employment and Labour on 29 April 2020

• South Africa

• Health and safety

02-05-2020

BACKGROUND

New Regulations were issued in terms of the Disaster Management Act, No. 57 of 2002 (Disaster Management Act) on 29 April 2020 (New DMA Regulations).

Regulation 2(3) of the New DMA Regulations provides that any Directions issued by a responsible cabinet minister in terms of the Previous DMA Regulations continue to apply unless varied, amended, or withdrawn by the cabinet member responsible for such Directions.

On 29 April 2020 before the New DMA Regulations were issued, the Minister of Employment and Labour issued Directive “COVID-19 Occupational Health and Safety Measures in Workplaces COVID-19 (C19 OHS), 2020” (DEL COVID-19 Directive).

The DEL COVID-19 Directive remains in force and effect despite the repeal of the Previous DMA Regulations.

The DEL COVID-19 Directive applies to companies / employers that are governed by the Occupational Health and Safety Act, No. 85 of 1993 (OHSA) only.

Mining compnaies can however refer to the DEL COVID-19 Directive, for guidance.

PURPOSE OF THE DEL COVID-19 DIRECTIVE

Clause 3 of the DEL COVID-19 Directive states that the purpose of the DEL COVID-19 Directive is to ensure that the measures taken by employers under the OHSA are consistent with the overall national strategies and policies to minimise the spread of COVID-19.

Clauses 4 and 5 of the DEL COVID-19 Directive reconfirm the responsibilities placed on employers to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to eliminate or mitigate the hazard or potential risk, and that, as far as reasonably practicable, all persons who may be directly affected by the activities (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety.

Clause 6 of the DEL COVID-19 Directive states that the identifiable hazard relating to COVID-19 is that workers face transmission by an infected person to workers in the workplace. In workplaces to which the public has access, the hazard includes transmission of the virus by members of the public. Each situation requires special measures to be implemented by employers in order to prevent the transmission of the virus.

Clause 7 of the DEL COVID-19 Directive states that the new hazard posed by COVID-19 is clearly identifiable and the basic measures to eliminate or minimise the risk are well known.

Clause 8 of the DEL COVID-19 Directive states that the Directive is based on infection transmission prevention and specific occupational hygiene practices that focus on the need for employers to implement measures to mitigate or eliminate the transmission of the virus in the workplace.

The DEL COVID-19 Directive does not reduce the existing obligations of the employer in terms of the OHSA or prevent an employer from implementing more stringent measures in order to prevent the spread of COVID-19.

RELEVANT DEFINITIONS

A “worker” is defined to mean any person who works in an employer’s workplace including an employee of the employer or contractor, a self-employed person or volunteer. The use of the definition “worker” is to ensure that all persons who work in a workplace are protected.

The term “workplace” is defined to mean any premises or place where a person preforms work.

The term “PPE” is defined to mean personal protective equipment.

SCOPE OF APPLICATION OF THE DEL COVID-19 DIRECTIVE

The DEL COVID-19 Directive applies to:

• The manufacturing, supply or provision of essential goods or essential services as defined in the Disaster Management Act;

• Any workplace permitted to continue or commence operations before the expiry of the DMA Regulations.

The DEL COVID-19 Directive does not apply to workplaces:

• Excluded from the OHSA in terms of Section 1(3) of the OHSA (which confirms that the DEL COVID-19 Directive does not apply to mines);

• In which medical and healthcare services are performed (other than retain pharmacies); and

• In respect of which another Minister has issued a Directive under the DMA Regulations.

DURATION OF APPLICABILITY

The DEL COVID-19 Directive remains in place for so long as there is a declared “state of disaster” in terms of Section 27(1) of the Disaster Management Act.

ADMINISTRATIVE MEASURES TO BE IMPLEMENTED BY EMPLOYERS

Every employer must establish (and implement) the following administrative measures:

• Undertake a risk assessment which gives effect to the minimum measures required by the DEL COVID-19 Directive taking into account the specific circumstances of the workplace (this implies that an issue-based hazard identification and risk assessment must be carried out). If the employer employs more than 500 employees, the employer 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 Section 7(1) of the OHSA to (a) its Health and Safety Committee established in terms of Section 19 of the OHSA, and (b) the DEL (Provincial Chief Inspector);

• Notify all workers of the content of the DEL COVID-19 Directive and the manner in which the employer intends to implement the DEL COVID-19 Directive;

• Notify all employees that if they are sick or have symptoms associated with COVID-19 they must not come to work, and take paid sick leave in terms of Section 22 of the Basic Conditions of Employment Act, No. 75 of 1997 (BCEA);

• Appoint a Manager to address employee or workplace representative concerns and to keep them informed, and in any workplace in which a Health and Safety Committee has been elected, consult with that committee on the nature of the hazard (COVID-19 ) in the workplace and the measures that need to be taken;

• Ensure that the measures required by the DEL COVID-19 Directive and its risk assessment plan are strictly complied with through monitoring and supervision;

• As far as practicable, minimise the number of workers on or at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve social distancing as contemplated in clause 17;

• Take measures to minimise contact between workers as well as between workers and members of the public;

• Provide workers with information that raises awareness in any form or manner, including where reasonably practicable, leaflets and notices placed in conspicuous places in the workplace informing workers of the dangers of COVID-19, the manner of its transmission, the measures to prevent transmission such as personal hygiene, social distancing, use of masks, cough etiquette, and where to go for screening or testing if presenting with COVID-19 systems;

• If a worker has been diagnosed with COVID-19 the employer must (a) inform the Department of Health (including through the COVID-19 hotline), and the DEL, and (b) investigate the cause, including any control failure and review the risk assessment to ensure that the necessary controls and PPE requirements are in place; and

• Give administrative support to any contact-tracing measures implemented by the Department of Health.

SOCIAL DISTANCING MEASURES

Employers are required to arrange the workplace to ensure minimal contact between workers.

As far as practicable, employers to ensure that there is a minimum of 1.5 metres between workers while they are working, for example, at their work stations.

Depending on the circumstances of the workplace or the nature of the sector, the minimum distance may need to be further (to be determined through the risk assessment process).

If it is not practicable to arrange work stations to be spaced at least 1.5 metres apart the employer must (a) arrange physical barriers to be placed between work stations to form a solid physical barrier or (b) if necessary, supply the employee free of charge with appropriate PPE based on the risk assessment of the working place.

Employer required to ensure that social distancing measures are implemented through supervision both in the workplace and in the common areas outside the immediate workplace through queue control or within the workplace such as canteens and lavatories. The measures may include dividing the workforce into groups or staggering break times to avoid the concentration of workers in common areas.

HEALTH AND SAFETY MEASURES THAT MUST BE IMPLEMNTED

Every employer must implement prescribed health and safety measures including (a) symptom screening, (b) sanitizers, disinfectants and other measures, (c) cloth masks, (d) specific measures in respect of workplaces to which the public has access, (d) ventilation, and (e) other PPE.

In relation to symptom screening (which must comply with Guidelines issued by the Department of Health, including “Guidelines for Symptom Monitoring and Management of Essential Workers for COVID-19 Related Infection”), must be implemented as follows:

• Workers must be screened at the time that they report for work to ascertain whether they have any observable symptoms associated with COVID-19, namely fever, cough, sore throat, redness of eyes or shortness of breath or difficulty in breathing;

• Workers must be required to report whether they suffer from any of the additional symptoms, namely body aches, loss of smell or loss of taste, nausea, vomiting, diarrhoea, fatigue, weakness or tiredness;

• Workers must be required to immediately inform the employer if they experience any of the symptoms referred to above while at work;

• Symptom screening must comply with the National Department of Health Guidelines, and testing to be conducted only if required to do so i.e. if the screening determines that it is necessary.

• If a worker presents with the COVID-19 symptoms or advises the employer of the symptoms, the employer must:

• Not permit the worker to enter the workplace or report for work;

• If the worker is already at work, immediately isolate the worker, provide the worker with an FFP1 surgical mask and arrange for the worker to be transported in a manner that does not place other workers or members of the public at risk either to be self-isolated or for a medical examination or testing and assess the risk of transmission, disinfect the area, and the worker’s workstation, refer those workers who may be at risk for screening, and take any other appropriate measures to prevent possible transmission;

• Ensure that the worker is tested or referred to an identified testing site;

• Place the employee on paid sick leave in terms of Section 22 of the BCEA, or if the employee’s sick leave entitlement is exhausted, make application for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme;

• Ensure that the employee is not discriminated against on grounds of having tested positive for COVID-19 in terms of Section 6 of the Employment Equity Act, No. 55 of 1998 (EEA);

• If there is evidence that the worker contracted COVID-19 as a result of occupational exposure, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 (COIDA) in accordance with Notice 193 published on 3 March 2020;

• If a worker has been diagnosed with COVID-19 and isolated, an employer may only allow a worker to return to work if three conditions are complied with, namely (a) the worker has undergone a medical evaluation confirming that the worker has been tested negative for COVID-19, (b) the employer ensures that personal hygiene, wearing of masks, social distancing and cough etiquette is strictly adhered to by the worker, and (c) the employer closely monitors the worker for symptoms on return to work.

• In relation to sanitizers, disinfectants and other measures, the following applies:

• Hand sanitizers must have at least 70% alcohol content and comply with the recommendations of the Department of Health;

• The employer is required, free of charge, to ensure that there are sufficient quantities of hand sanitizer available based on the number of workers or other persons who access the workplace at the entrance of and in the workplace, and every employee who work away from the workplace, other than at home, must be provided with an adequate supply of hand sanitizer;

• If a worker interacts with the public, the employer must provide the worker with sufficient supplies of hand sanitizer at the work station for both the worker and the person with whom the worker is interacting;

• The employer is required to take measures to ensure that all work surfaces and equipment are disinfected before work begins, regularly during the work period and after work ends, all areas such as toilets, common areas, door handles, shared electronic equipment are regularly cleaned and disinfected, and biometric systems must be disabled or made COVID-19 proof;

• Employers are required to ensure that there are adequate facilities for the washing of hands and soap and clean water, only paper towels are provided to dry hands after washing (use of fabric towelling is prohibited);

• Workers are required to wash their hands and sanitize their hands regularly while at work, workers interacting with the public are instructed to sanitize their hands between each interaction with public, and that surfaces that workers and members of the public come into contact with are routinely cleaned and disinfected.

• In relation to cloth masks the following applies:

• Cloth masks must be worn in any public place;

• Every employer must provide each of its employees, free of charge, with a minimum of two cloth masks, which comply with the requirements set out in the guidelines issued by the Department of Trade, Industry and Competition for the employee to wear while at work and while commuting to and from work and require any other worker to wear masks in the workplace;

• Sectoral guidelines will be issued regarding the replaceability of cloth masks;

• Every employer must ensure that workers are informed, instructed, trained and instructed regarding the correct use of cloth masks;

• The employer must make appropriate arrangements for washing, drying and ironing of cloth masks;

• If the risk assessment requires it, workers must be provided with accredited PPE.

• With regard to workplaces to which the public has access, the following applies:

• Depending on what is reasonably practicable given the nature of the workplace, every employer must (a) arrange the workplace to ensure that there is a distance of at least 1.5 metres between workers and members of the public or between members of the public), or (b) put in place physical barriers or provide workers with face shields or visors, (c) if appropriate, subject persons other than workers to screening, (d) if appropriate, display notices advising persons other than employees of the precautions that must be observed while in the workplace, and (e) require members of the public, including suppliers, to wear masks when inside their premises.

• With regard to ventilation, the employer must:

• Keep the workplace well ventilated by natural or mechanical means;

• Where reasonably practicable, have an effective local extraction ventilation system which is regularly cleaned and maintained;

• Ensure that filters of an extraction ventilation system is cleaned and maintained and replaced in accordance with the manufacturers instructions.

• With regard to other PPE every employer must:

• Regularly check the websites of the National Department of Health, National Institute of Communicable Diseases, and the National Institute of Occupational Health, whether any additional PPE is required or recommended.

WORKER OBLIGATIONS

In addition to the responsibility to take care of their own health and safety in terms of the OHSA, every worker is required to comply with measures introduced by the employer as required by the DEL COVID-19 Directive.

MONITORING ENFORCEMENT AND OFFENCES

Contravention of the DEL COVID-19 Directive may also be a contravention of the OHSA, and the offences and penalties provided for in Section 38 of the OHSA apply.

SECTORAL GUIDELINES

Sectoral Guidelines will be issued as per Annexure A to the DEL COVID-19 Directive.