WSG Article: South African Mining Industry: Practical considerations for employers relating to coronavirus (COVID-19), post lockdown

ENS
April 9, 2020 - South Africa

South African Mining Industry: Practical considerations for employers relating to coronavirus (COVID-19), post lockdown

Current state of affairs

On 5 March 2020, the first case of novel Coronavirus Disease of 2019 ("COVID-19"), was confirmed in South Africa. Prior to, and with the advent of the various regulations issued in terms of section 27(2) of the Disaster Management Act, 2002, all industry sectors, including the mining industry, were directed to take reasonable measures to prevent or limit the exposure to COVID-19 at working places. In practice, the measures implemented by mining operations included, amongst others, temperature screening, observance to social distancing, alternate means of alcohol-testing and limiting interaction with third parties.

On 23 March 2020, the South African President declared a 21-day national lockdown, which was subsequently extended to 30 April 2020. During the lockdown period and apart from those operations conducting, amongst others, “essential mining”, the majority of mining operations were required to limit operations to "care and maintenance" and/or significantly scale down mining operations and production.

It would be prudent for an employer to consider whether the measures that were applied prior to the national lockdown and/or during the lockdown, will still be considered adequate and reasonable post lockdown.

General duties and obligations of employer in terms of the MHSA

In terms of section 2(1) of the Mine Health and Safety Act, 1996 ("MHSA"), the employer at every mine that is being worked must ensure, as far as reasonably practicable, that:

the mine is designed, constructed and equipped to provide for conditions for safe operation and a healthy working environment;
the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves, or of any other person.

Section 5 of the MHSA, further requires the employer to, as far as reasonable practicable:

provide and maintain a working environment that is safe and without risk to the health of employees;
identify relevant hazards and assess the related risks to which persons, who are not employees, may be exposed to in relation to its mining activities; and
ensure that persons, who are not employees but who may be directly affected by the activities at the mine, are not exposed to any hazards to their health and safety.

Section 6 of the MHSA requires the employer to ensure an adequate supply of necessary health and safety equipment and health and safety facilities to employees, which includes the availability of sufficient quantities of all necessary personal protective equipment ("PPE"), so that every employee, who is required to use that equipment is able to do so. Furthermore, every employer must take reasonable steps to ensure that all employees, who are required to use PPE, are instructed on the proper use, the limitations and the appropriate maintenance of that equipment.

Health and safety equipment is defined in section 102 of the MHSA, as meaning “an article or part of an article that is manufactured, provided or installed in the interest of the health or safety of any person". Health is, in turn, defined in section 102 of the MHSA, as meaning "…occupational health at mines". "Occupational health" is, in turn, defined as including "occupational hygiene and occupational medicine". The term "occupational hygiene" is defined as meaning "the anticipation, recognition, evaluation and control of conditions at the mine, that may cause illness or adverse health effects to persons". The concept "occupational medicine" is defined as meaning "the prevention, diagnosis and treatment of illness, injury and adverse health effects associated with a particular type of work" (see Willem le Roux,Mine Health and Safety Law, LexisNexis, 2011 (loose-leaf revision, service 10, 2019), Vol 1, at COM-65 and COM-66, read together with paragraph 11.2.4 at COM-208). The obligation of the employer to provide "health and safety equipment" and PPE, must be interpreted against this background.

The employer is further required, as far as reasonable practicable, to:

provide health and safety training and to ensure that every employee becomes familiar with work-related hazards and risks and measures that must be taken to eliminate, control and minimise those hazards and risks (see section 10 of the MHSA);
identify hazards, as well as assess and mitigate hazards and risks to health or safety to which employees may be exposed while they are at work (see section 11 of the MHSA). The risk assessment process is a careful examination of what could cause harm to persons, so that one can weigh up whether enough precautions have been taken to prevent or minimise the said harm. The aforementioned envisages a three-pronged approach, namely the identification and assessment of hazards and risks; the determination of the measures necessary to eliminate, control or minimise the risk of the hazard occurring; and insofar that the risk remains, the employer is required to provide the necessary PPE and institute a programme to monitor the hazard to which to which employees may be exposed to, at a mine (see Willem le Roux,Mine Health and Safety Law, Vol 1, at COM-74 to COM-82); and
conduct occupational hygiene measurements, as well as establish and maintain a system of medical surveillance for employees exposed to health hazards (see sections 12 and 13, read together with Chapter 9 of the Mine Health and Safety Regulations).

In this context, the employer would have to take cognisance of the possible exposure of employees to COVID-19 in a working environment. See also the principles detailed inENSight: Is there an obligation on employers to report and investigate incidents of occupational acquired COVID-19 in the mining industry?

It must be borne in mind and in the context of the MHSA, that the general standard of care that the employer must apply is one of “reasonable practicability”. In terms of section 102 of the MHSA, the aforementioned standard of care, means practicable having regard to:

the severity and scope of the hazard or risk concerned;
the state of knowledge reasonably available concerning that hazard or risk, and of any means of removing or mitigating that hazard or risk;
the availability and suitability of means to remove or mitigate that hazard or risk; and
the cost and the benefits of removing or mitigating that hazard or risk.

The above factors must be taken into account to determine the “reasonableness” of the measures applied by the employer at a working place. The employer’s obligation is not an absolute one to take all measures, but is restricted by the concept “reasonableness”, and accordingly the employer is required to take those measures, which are reasonable in the particular circumstances (see Willem le Roux,Mine Health and Safety Law, Vol 1, at COM-32 to COM-44).

Continuous consideration of measures implemented at mining operations to prevent, limit or manage exposure to COVID-19 in working environments

In consideration of the above legal framework, and post lockdown and prior to commencing mining/production operations, an employer should critically consider its measures in place and take cognisance of changing circumstances relating to its working environment. This would, of course, also be subject to any further regulations and/or directives, which may still be promulgated, in particular relating to the commencement of mining operations and possible prescriptive control measures, which may be required at that particular point in time.

Currently, it is advisable for employers to give practical consideration to the following post lockdown circumstances:

most employees have returned to their homes during the lockdown period. Such employees will return from different provinces, regions and also cross-border neighbouring countries (which may have also implemented particular lockdown requirements). As far as potential exposure to COVID-19 during the lockdown period is concerned, each employee would be returning to the mine from potentially “uncontrolled” circumstances, as opposed to the “controlled” circumstances that may have existed prior to the lockdown (for instance, where such employees may have been resident in hostels and/or mine villages, in the immediate vicinity of the mining operations). In the latter circumstances, the movement of employees may have been limited between the mine and the employees’ accommodation, and general interaction may also have been limited to employees amongst themselves, whereas the interaction of employees, with persons outside the mining operations, during the lockdown period, would have taken place on a totally different level, with them possibly venturing into public spaces (when for instance shopping, banking, being transported, etc.);
risk assessments, which were conducted prior to the lockdown period for the purpose of preventing, mitigating or limiting the exposure to COVID-19 at working places and at the mine, should be reviewed and the adequacy of the control measures should be critically considered;
“start-up” processes should be prepared and implemented, taking into account the prevention or mitigation of exposure to COVID-19 at working places;
medical screening, isolation and possible quarantine measures in relation to employees should be considered (in particular, where such employees return from cross-border neighbouring countries);
the medical surveillance system and the conduct of occupational hygiene measurements should be considered. The examination and categories for fitness to perform work at a mine in terms of the mine’s Mandatory Code of Practice on the Minimum Standards of Fitness to Perform Work on a Mine, should also be taken into account, with specific consideration to the category of immunocompromised employees (employees with pre-existing conditions or persons with a potentially weak immune system). The mine’s Mandatory Code of Practice for the Management of Medical Incapacity due to Ill-Health and Injury should also be considered, as part of this process;
the PPE to be provided to employees and/or categories of employees should be considered. In practice, the general approach for preventing, mitigating or limiting the exposure to COVID-19, is to make provision, for instance, for face masks, gloves and/or sanitisers, and changes caused to the methods of work by providing this to employees should be considered;
working places (both underground and surface) should be assessed, together with the means and manner that employees travel to, and from their working places. In this regard, social distancing and hygienic practices must be implemented;
training and awareness programmes should be implemented, and/or developed, to make employees aware of their duties and responsibilities in this regard. This would include, for instance, reference to sections 22 and 23 of the MHSA, which provides for employees’ duties to protect their own health and safety, as well as the health and safety of other persons, and the right to leave a working place if circumstances arise at that working place, which with reasonable justification appear to employees to pose a serious danger to their health or safety; and
the mine’s system to deal with potential claims for compensation relating to “occupationally acquired COVID-19” in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 ("COIDA") should be considered, against the background of the principles detailed inENSight: Can employees, who are infected with the Coronavirus, be compensated in terms of COIDA?

Practical foresight is an “essential service” during, and post lockdown

In the coming few days, the State would have to consider the possible relaxation of the lockdown period, as well as possible further regulations and/or directives to be promulgated to deal with such situation. It is clearly evident that the State will have to consider the economical impact and weigh up employees’ interests to support their families, as well as employers’ interests to protect the viability of their businesses, as opposed to the health and safety of all citizens.

In the current circumstances, it would be advisable for employers to immediately commence the process of critically considering their current and/or further measures and controls to ensure the health and safety of employees at work, as far as reasonably practicable, in the post lockdown period.

Pieter Colyn

Executive mine and occupational health and safety

[email protected]

+27 83 327 2474

Warren Hendricks

Executive mine and occupational health and safety

[email protected]

+27 82 788 0733