Since our last update, various major shifts have occurred in the manner in which business operate. The far-reaching implications of the COVID-19 Pandemic is now more widely understood and the impact on both the local and global economies have been devastating.
With government again extending the National State of Disaster in anticipation of a so-called “Second Wave” of infections and the majority of business back in operation, we have again made a convenient, summarized schedule of the Regulations available to our clients.
As all businesses as still adjusting to the “New Normal”, we have seen a dramatic uptick in the number of referrals to the CCMA and other Dispute Resolution Forums on issues relating to measures taken by various Employers during the Lockdown Period, which included mass scale retrenchments as well as changes in conditions of employment where Employers and Employees are sharing the financial impact of the pandemic.
Additionally, on the 1st of October 2020 the Department of Employment and Labour published Consolidated Directions on Occupational Health and Safety Measures in certain workplaces which seeks to establish various new standards for reporting and prevention applicable to all Employers with more than fifty (50) employees.
The full Directions are available as a download here:
In this directive, a key consideration is that “worker” has a different meaning to other Labour Legislation and means “any person who works in an employer’s workplace, including an employee of the employer or contractor, a self-employed person or volunteer…”. This means that any person who works within the premises or place where an Employer works is deemed to be the responsibility of the Employer under these regulations.
This directive applies to all Employers and workplaces except such workplaces as are exempted, either in terms of Section 1(3) of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or where the Minister has given specific directions relating to Health and Safety.
Employers with less than ten (10) employees need only comply with direction 12, however there are still major obligations placed on Employer’s in terms of this directive.
Employers must still undertake a risk assessment and develop a plan outlining protective measures for the phased return of Employees in terms of the risk assessment and must consult with any representative Trade Union or Health and Safety Committee in the workplace on the implementation of the plan.
Employers with more than fifty (50) employees must also submit a record of its risk assessment to the Department of Employment and Labour within twenty-one (21) days of this directive coming into effect, being the 21st of October 2020.
Every Employer MUST implement measures to perform symptom-screening at the workplace and where an Employee displays symptoms, arrange for the worker to be transported to a health facility. The Employer must also assess the risk of transmission to other workers and implement steps to screen such workers who may have had contact with the worker. Any Employee who displays symptoms must immediately be placed on Sick Leave and, if the Employee’s sick leave is exhausted, apply for an illness benefit in terms of the TERS.
Where there is evidence that an Employee contracted COVID-19 in the course of his/her employment, a claim must be lodged with COIDA.
Workers who have been diagnosed with COVID-19 must isolate for a period of ten (10) days before being allowed back to work, whereafter the Employee must be required to wear a surgical mask for twenty-one (21) days.
An Employee may refuse to perform any work in circumstances where a reasonable justification exists for an Employee to believe that an imminent and serious health risk exists. The Employee and Employer must attempt to resolve this issue as soon as possible, failing which, the Employer must inform an Inspector (Either in terms of OHSA or the BCEA) within 24 hours and comply with the directions issued by such Inspector.
It is important to note that no action may be taken against an Employee for exercising this right in terms of direction 14.
The above summary does not necessarily refer to every workplace nor does it apply to every employer, it is still the responsibility of the Employer to ensure its’ compliance at all times with the relevant legislation, however should you have questions or concerns, you are, as always, invited to contact us for assistance.
Eben van Deventer 082 412 2845 firstname.lastname@example.org
AJ van Niekerk 079 890 4411 email@example.com
Elri de Bruin 082 753 5695 firstname.lastname@example.org
Riané Smith 071 687 1485 email@example.com
Conrad Luus 072 624 3410 firstname.lastname@example.org
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