On 15th March, President Cyril Ramaphosa addressed the nation on curbing the spread of the coronavirus, declaring a National State of Disaster followed by total lockdown for all South Africans who are not essential service providers as of midnight on Thursday 26th March. What had only just recently seemed to be a concern to be observed from afar with no real effect on the day-to-day working South African or business owner was now of very real, up-close significance. 

In light of the seriousness of the COVID-19 pandemic employers worldwide have commenced putting in place plans to mitigate the risk of their employees becoming exposed to the virus or falling ill as a result of the infiltration of the virus into the workplace or environment. 

IMPLEMENTATION OF HEALTH AND SAFETY IN THE WORKPLACE

In order for employers to ensure that they are complying with South African Labour Law during this hazardous period, it is imperative for the employer to implement the rules and regulations of the Occupational Health and Safety Act 85 of 1993 (“the OHSA”).  Most importantly, during this time the OHSA must be followed to its full extent  contain the spread of CoVID19, protect employees as well as limit their liability against claims and fines.

The OHSA states that an employer must ensure that its working environment is safe and without risk to the health of its employees. Within the context of COVID-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace:

• Practically speaking, beyond ensuring that the workplace is kept clean and hygienic, the employer can promote a healthy working environment by promoting regular hand-washing, promoting good respiratory hygiene and keeping employees informed on developments related to COVID-19.
• If an employee complains of any of the symptoms of the virus, he or she must be separated from other people into a sick bay or designated isolation space until transported to an approved holding or testing facility. 

https://www.golegal.co.za/coronavirus-sa-employment/

Occupational health and safety regulations in the workplace encompass a four-prong approach:

1. Safe work practices

Safe work practices are designed and instituted to reduce the duration, frequency and intensity of exposure to a hazard. These involve ensuring strict hygiene by providing resources for cleaning, promoting hygienic behaviour and proper waste disposal. For frontline staff, particularly, this includes the supply of appropriate personal protective clothing and equipment (PPC & E) that includes hand washing or sanitising facilities, the equipment to clean and disinfect of hard surfaces, as well as training to identify and respond to risks, and prevent physical or close contact.  

As COVID-19 is thought by experts to spread easily even when an infected person does not have symptoms, it is recommended that, where possible, employers put in place a contingency plan by making alternative working arrangements available for employees.  These measures should embrace as little physical contact as possible with co-workers, suppliers, contractors and customers. To replace physical consultation and communication methods, online meetings, conference calls, and various internet or mobile telephone facilities, should be implemented as a preventative measure until further notice.

2. Engineering Controls

Engineering controls such as adequate ventilation and installing physical barriers to exposure may be limited by availability of resources and time. These can include:

• installing physical barriers, such as clear plastic face shields;
• installing a drive-through window for customer service; or
• in some limited healthcare settings, such as for aerosol generating procedures, specialised negative pressure ventilation may be indicated.

• Personal Protective Clothing & Equipment (PPC&E) relevant to job, level of risk and proper training
• Discontinuing nonessential local and international travel 
• Developing emergency communications plans, including a task team for answering workers’ concerns and internet-based communications, if feasible
• Providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviours 
• Training workers who need to use protective clothing and equipment on how to put it on, wear and it, and remove and dispose of it correctly.  All training material should be easy to understand and available in the appropriate language and literacy level for all workers.

4. Personal Protective Clothing and Equipment

Personal protective clothing and equipment (PPC&E) is aimed at reducing exposure, based on the risk profile of a particular job.  PPC&E should be:

• •  selected based upon the hazard to the employee;
  • properly fitted and some, such as respirators, must be periodically refitted;
  • conscientiously and properly worn;
  • regularly maintained and replaced, as necessary;
  • properly removed and disposed of to avoid contamination of self, others or the environment.

Classifying Worker Exposure to COVID-19

Worker-risk of occupational exposure to SARS-CoV-2 (the virus that causes COVID-19) during an outbreak may vary from very high to high, medium, or low risk. The level of risk depends, in part, on the industry type, need for contact within 2 metres (or 6 feet) of people known, or suspected, to be infected with COVID-19, or the requirement for repeated or extended contact with persons known, or suspected, to be infected with COVID-19

High Exposure Risk 

• High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Workers in this category include: 
• Healthcare delivery and support staff exposed to known or suspected COVID-19 patients (e.g. doctors, nurses, and other hospital staff who must enter patients’ rooms).
• (Note: when such workers perform aerosol-generating procedures, their exposure risk level becomes very high.)
• (Note: when such workers perform aerosol-generating procedures, their exposure risk level becomes very high.) 
• Medical transport workers moving known or suspected COVID-19 patients in enclosed vehicles (e.g. ambulance personnel and porters).
• Mortuary workers involved in preparing (e.g. for burial or cremation) the bodies of people who are known to have, or suspected of having COVID-19 at the time of their death.

Lower Exposure Risk

• Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being infected with COVID-19, nor frequent close contact with (i.e. within 2 meter of) the general public. Workers in this category have minimal occupational contact with the public and other co-workers.

Source:  Department of Employment and Labour:  Workplace Preparedness (COVID-19/SARS CoV-19 Virus)

Occupational Exposure and Compensation for Occupational Injuries and Diseases (COID)

South Africa’s Compensation for Occupation Injuries and Diseases Act of 1993 (amended in 1997) (COIDA) provides for the “no fault” compensation of employees for any disablement caused by injuries or diseases contracted in the course of fulfilling their occupation, or for death resulting from such injuries or diseases.  “No-fault compensation” is a legal rule through which an aggrieved party is entitled to compensation without having to prove any other party was at fault for the accident. This allows the employee to claim compensation without having to sue the employer. The COID Fund covers most employees, not only those who earn less than a certain amount. The Fund pays compensation to permanent and casual workers, trainees and apprentices, and it currently excludes domestic, informally employed, independent and self-employed workers from compensation.

The following types of compensation are paid by the Fund or its designated carriers: 

• Temporary Total Disablement (TTD) (loss of income/salary) 
• Permanent Disablement (PD) 
• Medical Costs 
• Death benefits

If the employee considers the compensation inadequate and can prove negligence on the part of their employer, then the employee is entitled to increased compensation. In this case an application for increased compensation has to be lodged within 24 months of the date of the accident/diagnosis of the disease.  It should be noted that according to the Act employer ‘negligence’ can also include a defect in the condition of the premises, place of employment, material or machinery in the business concerned where the employer was aware of the defect but still failed to correct it. The onus is on the employee to prove that the employer was 100% responsible for the workplace accident or disease. As a result very few cases of negligence have been accepted.

https://www.labourguide.co.za/workshop/1547-compensation-for-injury-and-occupational-diseases-act-130-of-1993-coida/file

http://www.treasury.gov.za/publications/other/ssrr/Session%20One%20Papers/Compensation%20Fund%20Project%202nd%20draft.pdf

COVID-19 AND SOUTH AFRICAN LABOUR LAW

Work is a contract between an employer and employee. Adjustments to a contracted working arrangement can happen but this needs to be a formal process, in writing, to protect both parties. In this regard, and in answer to the many questions that have surfaced around employer’s rights since President Ramaphosa’s National State of Disaster address on Sunday 15 March 2020, the Department of Employment and Labour has recently provided clear guidance – particularly regarding:

1. the rights of employees’ who are required to self-quarantine; 
2. sick leave and annual leave entitlements; and
3. the conditions under which employees would have access to their UIF benefits.

Employees who are required to quarantine

The World Health Organisation has indicated that a person should be in quarantine for a period of at least 14 days. After the quarantine period and even if an employee does not display any symptoms, the employer may nevertheless may require the employee to be tested by a medical practitioner and to provide the employer with a medical certificate confirming that the employee can return to work.  According to Employment and Labour Minister, Thulas Nxesi, “In the event that an employee is required to be quarantined for longer than 14 days, as a result of having travelled or been in contact with an infected person, such leave (unpaid) will be recognised as special leave and this employee will be eligible to apply for unemployment insurance benefits.”

https://www.gov.za/speeches/companies-facing-distress-17-mar-2020-0000

Sick Leave Entitlements

Sick leave rules as per the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) apply in that should an employee contract COVID-19 an employer should apply its sick leave policy to such an employee.  In addition, an employee must obtain a medical certificate and any time out of the office will be considered as sick leave. Due to the nature of the illness, an employee with COVID-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.

During the period the employee is off sick, and if he or she has not exhausted his or her sick leave benefits as per the BCEA (or in accordance with a company’s own sick leave benefits that are greater than the BCEA stipulated minimum), he or she is still entitled to receive his or her normal and full remuneration and benefits in line with the company’s sick leave policy, unless by special arrangement.

Forced Sick Leave

In the case of compulsory quarantine, i.e. quarantine required and enforced by the employer, the employee will not be on sick leave unless a medical certificate has been issued to an employee placing that employee in quarantine. An employer may require an employee to be quarantined if the employee recently travelled to an affected country or if the employee displays symptoms of the illness whilst at work. The employer could consider such an employee to be on special paid leave away from the office – depending on the nature of the work performed by such an employee. As an alternative to placing the employee on any type of leave, the employer could make it possible for the employee to work from home.

Sick Leave Entitlements

Sick leave rules as per the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) apply in that should an employee contract COVID-19 an employer should apply its sick leave policy to such an employee.  In addition, an employee must obtain a medical certificate and any time out of the office will be considered as sick leave. Due to the nature of the illness, an employee with COVID-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.

During the period the employee is off sick, and if he or she has not exhausted his or her sick leave benefits as per the BCEA (or in accordance with a company’s own sick leave benefits that are greater than the BCEA stipulated minimum), he or she is still entitled to receive his or her normal and full remuneration and benefits in line with the company’s sick leave policy, unless by special arrangement.

Forced Sick Leave

In the case of compulsory quarantine, i.e. quarantine required and enforced by the employer, the employee will not be on sick leave unless a medical certificate has been issued to an employee placing that employee in quarantine. An employer may require an employee to be quarantined if the employee recently travelled to an affected country or if the employee displays symptoms of the illness whilst at work. The employer could consider such an employee to be on special paid leave away from the office – depending on the nature of the work performed by such an employee. As an alternative to placing the employee on any type of leave, the employer could make it possible for the employee to work from home.

Conditions of the UIF Act

Under normal conditions, section 20(1)(a) of the Unemployment Insurance Act 63 of 2001 (UIF Act) outlines a contributor’s right to illness benefits, stating that a contributor is entitled to illness benefits if “the contributor is unable to perform work on account of illness”. This is, however, subject to exclusion when a contributor is entitled to other unemployment benefits.  However, given the extraordinary circumstances that surround the arrival of the COVID-19 pandemic in South Africa, a range of scenarios has emerged which have not yet been contemplated by the UIF Act. During this time it should be noted that as this is a first-time detectable human virus, labour laws could be relaxed by agreement between the employer and employee. Furthermore, employee contractual obligations could be waived, or various indulgences granted by the employer, so that the spread of the coronavirus does not affect an employee’s income or an employer’s revenue as far as is reasonably possible during this time.

https://www.golegal.co.za/coronavirus-sa-employment/

MENTAL HEALTH IN THE WORKPLACE DURING COVID-19

The General Population

Social isolation is associated with poor mental health. Though coronavirus quarantining measures and guidance vary by country and are still evolving, a study of the 2003 SARS outbreak around the psychological effects of quarantining on residents in Toronto (Hawryluck L, Gold WL, Robinson S, et al., SARS control and psychological effects of quarantine, Toronto, Canada, 2005), found that a substantial portion of those quarantined displayed symptoms of post-traumatic stress disorder and depression.  If quarantining is necessary, there are steps that can mitigate the effects of being isolated, including educating employees on the importance of:

• staying connected with social and family networks via technology;
• keeping to regular daily routines as much as possible;
• exercising regularly and sticking to practicing habits that one finds enjoyable and relaxing; 
• recognise warning signs and triggers, and engaging one’s support network; and
• seeking practical, credible information at specific times of the day.

https://www.weforum.org/agenda/2020/03/covid19-coronavirus-mental-health-expert-insights/

What can managers and HR professionals do to support employees?

With many organisations requiring employees to stay out of the office, it’s more important than ever to encourage and facilitate regular communication with employees. Here are tips for managers and human resource professionals in supporting employees in staying connected to the workplace and each other:

• Facts minimise fear:  When managing a fear response to the COVID-19 pandemic, it is important for employees to stay informed by trusted sources. There are two valuable sources of information available to employers.   One is the World Health Organization (WHO) and the other is each country’s national authority. Fear and panic may also agitate underlying psycho-social problems – EAP services should be available to support employees.

• Show empathy and be available: Understand that employees are most likely feeling overwhelmed and anxious about circumstances related to the coronavirus. Make yourself available to your staff to talk about fears, to answer questions and to reassure them about work and other underlying issues that might come up.
• Stay connected using communication and meeting tools: Use virtual meeting options with video, like Zoom or even a Whatsapp video call, for regular check-ins and to allow teams to connect with one another “face-to-face.”
• Recognise the impact of isolation and loneliness: Working remotely can cause employees to feel isolated, making it more important to routinely check in with your team, not only about their work product, but also to see how they are doing. Loneliness can lead to depression and other mental health issues. Be aware of significant changes you may see in your team member’s personality or work product, because it may be a sign that a person is struggling.
• Encourage online training: This is a great time to encourage employees to sharpen their skills with online training. It is also a good distraction to focus on learning rather than worrying about other issues. Find online trainings and new learning opportunities to recommend to employees.
• Check in with your EAP: Check in with your Employee Assistance Programme (EAP) to confirm their availability and to coordinate support for employees. Remind the staff that the EAP is there if they need support and can connect employees with behavioral health support, if needed.  Be sure to include all relevant website links and phone numbers for both the EAP and health plan in communicating with employees.

Source:  http://workplacementalhealth.org/Employer-Resources/Working-Remotely-During-COVID-19

Healthcare Workers

For healthcare workers, feeling under pressure is a likely experience and it is quite normal to be feeling this way in the current situation. Stress and the feelings associated with it are by no means a reflection of incompetence or weakness.  As a healthcare worker, managing one’s mental health and psychosocial wellbeing during this time is as important as managing one’s physical health.

Team Leaders and Managers in Health Facilities

Keeping all healthcare staff protected from chronic stress and poor mental health during this time means that they will have a better capacity to fulfil their roles. Bear in mind that the current situation will not go away overnight and so a focus on longer term occupational capacity will be more effective than repeated short-term crisis responses.

https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf

HELPFUL RESOURCES

1. World Health Organisation (WHO) Q&A:  https://www.who.int/news-room/q-a-detail/q-a-coronaviruses 
2. Department of Health:  http://www.health.gov.za/index.php/outbreaks/145-corona-virus-outbreak/465-corona-virus-outbreak 
3. South African Government Newsroom https://www.gov.za/newsroom/ 
4. Dept of Health Online Resources and news portal: https://sacoronavirus.co.za/category/press-releases-and-notices/ 
5. WHO Mental Health and Psychosocial Considerations during COVID-19 outbreak: https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf
6. Latest information from the National Institute for Communicable Diseases (NICD): https://www.gov.za/NovelCoronavirus
7. National Institute for Communicable Diseases Covid-19 updates:  http://www.nicd.ac.za/media/alerts/
8. Speech on 16 March 2020 from President Cyril Ramaphosa: Measures to combat Coronavirus COVID-19 epidemic: https://www.gov.za/speeches/statement-president-cyril-ramaphosa-measures-combat-covid-19-epidemic-15-mar-2020-0000 

HOTLINE NUMBERS

1. Department of Health WhatsApp service for news and updated info.
2. Simply add this number: +27 60 0123456 as a WhatsApp contact and type Hi in the message block and they will send you a useful menu
3. Corona Virus Outbreak 24-Hour Hotline Number: 0800 029 999