16 October 2020 by Michael Bagraim
Over the past seven months we have received numerous regulations via Government Gazettes on Directions for employers and employees in the workplace.
It has become a nightmare to try to advise trade unions, employers and workers on their rights and duties as many of these regulations have not only contradicted each other, but have become more and more difficult to understand.
It is with some relief that we have received a Consolidated Direction under Gazette No 43751. This Consolidated Regulation was brought into law on October 1, 2020 and was signed off by the Minister of Employment and Labour, Mr TW Nxesi last month.. These Directions override all previous Directions and to a large degree are easier to understand and to implement.
These Directions are for every single workplace in South Africa, including all employees and in fact the extended definition of workers. The only exception is that the Direction does not apply to workplaces excluded from the Occupational Health and Safety Act (OHSA).
If there are less than 10 employees, that business needs only to apply the measures set out in Direction 12.
For employers with over 10 employees, every employer must undertake a risk assessment and must consult with trade unions, if there is one, or with their Health and Safety Committee established in terms of the OHSA.
This plan will include a list of issues including the list of employees, the opening hours, the identification of the vulnerable employees, minimising the number of workers at the workplace and the protective measures taken.
If the employer employs more than 50 employees, they must submit a record of the risk assessment to the Health and Safety Committee and to the Department of Employment and Labour within 21 days of the Direction.
It must be remembered the Direction is effective from October 1 and hence the employers with over 50 employees must submit the risk assessment to the department by October 22 at the latest.
The employer must also disclose to all the workers the content of this Direction and they must require all employees to disclose whether they have health issues, comorbidities or conditions contemplated in the definition of vulnerable employees. This does sound rather strange in that many employees would not want to share their medical conditions with their employer.
I don’t have an answer for this at this stage but there will be disputes about it in due course. All employees must be told that if they are sick or have symptoms associated with the virus, they must not come to work and they must be given paid sick leave in terms of Section 22 of the Basic Conditions of Employment Act (BCEA). All employers who employ over 50 employees must submit data to the National Institute for Occupational Health about each employee’s vulnerability. They must also supply details of the screening of employees who are symptomatic and the details of the employees who test positive. Once again, we must reiterate that all employers must have a minimum of 1.5 metres between workers but, if not practical, then physical barriers have to be placed between the work stations or erected on work stations. All the PPE must be supplied free of charge.
Every employer must take measures to screen workers and determine whether they suffer any of the symptoms.
If a worker is showing evidence of the symptoms they must be provided with a surgical mask and arrangements must be made for the worker to be transferred to a health facility. Thereafter they must assess the risk of transmission and disinfect the area.
The worker will only be allowed back to work after the diagnosis without viral testing if the worker has completed the mandatory 10 days of isolation.
However, the worker can return to work earlier if the worker has undergone a further medical evaluation confirming fitness to work. Any other employee who has had minimal exposure to the diagnosed worker may continue working using a cloth mask. If high risk, the worker must remain in quarantine for 7 days and all other workers must be monitored for the 10 days thereafter. All employers must supply adequate facilities for washing hands with soap and water and paper towels.
Small businesses must provide cloth masks or require an employee to wear some form of cloth covering their mouth and nose while at work.
If an employee refuse to perform any work there must be reasonable justification for this.
The employee is obliged to notify the employer either personally or through a health and safety representative of his or her refusal and the reason for the refusal.
Every employer in turn will consult with the Compliance Officer and the Healthy and Safety Committee and if no committee, with the representative.
The employer and the employee should try and resolve the matter internally but if they are unable to resolve it then they must notify an inspector of the issue. If there is no reasonable explanation by the employee, then the employee has to return to work or could face possible action and certainly no salary for the down time. If the employee is still of the opinion that he or she should not return to work, the employee is obliged to refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). The CCMA will sort this matter out as soon as possible.
It is submitted that certain of these disputes could easily be avoided if the parties discuss the employees concern about the health and safety.
It does state that no employer may make any deduction from an employee’s remuneration or permit an employee to make any payment to the employer or any other person, in respect of anything which the employer is obliged to provide in terms of these Directions.
This refers to PPE and not to the refusal to work. It must also be mentioned that there are various Sectoral and or Industrial Associations who would develop their own guidelines in conjunction with the Department of Health.
* Michael Bagraim is a labour lawyer. He can be contacted at firstname.lastname@example.org.
** The views expressed here are not necessarily those of Independent Media.
Source: IOL at https://www.iol.co.za/capeargus/opinion/covid-19-regulation-maze-now-easier-to-navigate-for-labour-force-f07becb4-2822-4e51-bc79-439d31fb79a9