WSG Article: South Africa: All Industries excluding the mining industry: is there an obligation on employers to report and investigate incidents of employees contracting the Coronavirus (COVID-19) ?

ENS
April 14, 2020 - South Africa

South Africa: All Industries excluding the mining industry: is there an obligation on employers to report and investigate incidents of employees contracting the Coronavirus (COVID-19) ?

Application of the Occupational Health and Safety Act, 1993 (the "OHASA")?

Several health and safety obligations (both general and specific) towards employees are imposed on an employer or user in respect of the "workplace". The term "workplace" is also defined broadly in the OHASA as "any premises or place where a person performs work in the course of his employment". The provisions of the OHASA and the regulations which are binding thereunder do not, however, apply to working places which are regulated by the provisions of the Mine Health and Safety Act, 1996 (the "MHSA"). Accordingly, the OHASA does not apply to mines, works and mining areas as defined in the MHSA, except if the MHSA provides otherwise (See in this regard Willem le Roux and Pieter Colyn,Occupational Health and Safety Law, LexisNexis 2016 (loose-leaf revision 7, 2019), Volume 1, at 3-48 and 3-49).

The regulatory body responsible for regulating, amongst others, compliance with the provisions of the OHASA (including the regulations promulgated thereunder) is the Department of Employment and Labour ("DEL").

Is there an obligation on the part of the employer or user or medical practitioner to notify the DEL of known cases of COVID-19 amongst the workforce?

Section 24 of the OHASA

In terms of section 24(1) of the OHASA, "(e)ach incident occurringat workor arising out of or in connection with the activities of persons at work, or in connection with the use of plant or machinery, in which, or in consequence of which –

any person dies, becomes unconscious, suffers the loss of a limb or part of a limb or is otherwise injured orbecomes illto such a degreethat he is likely either to die or to suffer a permanent physical defect orlikely to be unable for a period of at least 14 days to work or to continue with the activity for which he was employed or is usually employed;
a major incident occurred;
the health and safety of any person was endangered and where –
- a dangerous substance was spilled;
- the uncontrolled release of any substance under pressure took place;
- machinery or any part thereof fractured or failed resulting in flying, falling or uncontrolled moving objects; or
- machinery ran out of control;

shall, within the prescribed period and in the prescribed manner, be reported to an inspector by the employer or the user of the plant or machinery concerned, as the case may be" (our emphasis).

The word "incident" is defined in section 1 of the OHASA as "an incident as contemplated in section 24(1)".

From the wording of section 24(1) of the OHASA, it appears that the application of this section is far-reaching in that, it does not only include an incident which arises out of, or in connection with the activities of a person at work, but also includes an incident which occurs at work. It is important to note, however, that the incident will only become reportable if any one of consequences set out in section 24(1)(a) to 24(1)(c) arises. In other words, if a person becomes infected with a disease as a result of the exposure at work, but is only booked-off for a period of 5 days, such incident would not be reportable in terms of OHASA.

Whether or not an incident is reportable in terms of section 24 of the OHASA, will therefore be determined on a case-by-case basis, taking into account various factors.

With specific reference to COVID-19, regulations were issued stipulating measures to be implemented in order to prevent the spread of COVID-19. If a person has tested positive for having contracted COVID-19 or has come into contact with a person who is the carrier of the disease, such person must self-isolate him/herself for a period of 14 days or more, depending if the person becomes symptomatic and the severity of such symptoms. In light thereof, if a person is exposed to COVID-19, he/she may not be in a position to "work or to continue with the activity for which he was employed or is usually employed" for a period of at least 14 days.

The exposure of an employee to the COVID-19 virus would not necessarily be reportable in terms of section 24(1) of OHASA. The obligation imposed on the employer or user in terms of section 24(1)(a) of the OHASA, would only arise if the employee contracted the disease as a result of the exposure to the COVID-19 virus whilst he/she was at work.

The word "work" is defined in section 1 of the OHASA as "work as an employee or as a self-employed person, and for such purpose an employee is deemed to be at work during the time that he is in the course of his employment, and a self-employed person is deemed to be at work during such time as he devotes to work as a self-employed person".

The question as to whether exposure to the COVID-19 virus occurred whilst the employee was at work may be difficult to establish, especially in isolated cases and where employees are together commuting to and from work on a daily basis. The question will ultimately be determined by the circumstances of each case.

Section 25 of the OHASA

On 23 March 2020, a notice was published by the Compensation Commissioner, stipulating that, effective from the date of publication, employees who have "occupationally acquired"COVID-19may be compensated in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 ("COIDA").

Section 25 of the OHASA provides, that "(a)ny medical practitioner who examines or treats a person fora disease described in the Second Schedule to the Workmen's Compensation Act, 1941 (Act No. 20 of 1941), or any other disease which he believesarose out ofthat person's employment, shall within the prescribed period and in the prescribed manner report the case to the person's employer and to the chief inspector, and inform the person accordingly" (our emphasis).

With reference to a disease which has been described in the second schedule to the Workmen's Compensation Act, 1941 (the "WCA"), it is important to note that COIDA repealed the WCA. In terms of section 12(1) of the Interpretation Act, 1957, references to the WCA must be construed as references to COIDA. In light thereof, section 25 of COIDA must be interpreted with reference to Schedule 3 of COIDA (as opposed to the second schedule of the WCA) (See Willem le Roux and Pieter Colyn,Occupational Health and Safety Law,Volume 1, at 9-4 and 9-5). "Occupationally-acquired" COVID-19 is a disease which may be compensatable in terms of COIDA. It must be noted, however, that "occupationally-acquired" COVID-19 is not listed as a disease in Schedule 3 of COIDA.

Premised on the aforesaid, the obligation on the part of the medical practitioner to report a case of COVID-19 to the employer and chief inspector will only arises, if the medical practitioner is of the view that the contracting by the employee of COVID-19, arose out of that person's employment. Such determination will have to be made on a case-by-case basis, taking into account a number of factors. As per our previousMOHS ENSight, the place of exposure (being at a working place) is not itself sufficient to determine whether or not COVID-19 was "occupationally-acquired". In order for the exposure to arise out of the person's employment, the exposure must be associated with, or incidental to, that persons particular job. In other words, the risk must be one connected to that person's job. For example, if a medical practitioner during a medical examination of a person is exposed to COVID-19 and subsequently contracts the disease, such exposure would have arisen out of his/her employment. The same would apply to a paramedic who is exposed to COVID-19 whilst transporting a patient who has COVID-19 to hospital.

Where the medical practitioner is of the view that the exposure to COVID-19 arose out of a person's employment, he/she is required to notify the chief inspector and employer, within 14 days of the examination or treatment of the person concerned, by means of the WCL 22 form.

What does reporting to the DEL entail?

Section 24(1) of the OHASA provides that a reportable incident shall be reported within the prescribed period and in the prescribed manner, to an inspector by the employer or user, as the case may be. The manner in which reportable incidents must be reported to an inspector is set out in Regulation 8 of the General Administrative Regulations, which are binding under the OHASA.

Regulation 8 of the General Administrative Regulations, provides that the employer or user shall:

within 7 days of any incident referred to in section 24(1)(a) of the OHASA, give notice thereof to the provincial director in the form of WCL 1 or WCL 2; and
where a person, in consequence of such an incident, dies, becomes unconscious, suffers the loss of a limb or part of a limb, or is otherwise injured or becomes ill to such a degree that he or she is likely either to die or becomes ill to such a degree that he or she is likely either to die or to suffer a permanent physical defect, such incident, including any other incident contemplated in section 24(1)(b) and (c), shall forthwith also be reported to the provincial director by telephone, facsimile or similar means of communication.

With respect to cases where employees have been exposed to COVID-19 in the workplace, the employer or user will be required to notify the provincial director in the form of WCL 1, within 7 days. In circumstances where employees are self-isolating or where employees are symptomatic, but symptoms are not severe, there would be no obligation on the part of the employer or user to notify the provincial director, by means of "telephone, facsimile or similar means of communication", of the incident.

Is there an obligation on the part of the employer or user to investigate cases of COVID-19?

In terms of Regulation 9(1) of the General Administrative Regulations, an employer or user is required to kept a record (in the form of Annexure 1) of all incidents which are reportable in terms of section 24 of the OHASA, and also of any other incident which resulted in the person concerned having had to receive medical treatment, other than first aid.

Regulation 9(2) further provides that all incidents which must be recorded, must be investigated within 7 days of the incident and finalised as soon as is reasonably practicable. Such investigation must be conducted by the employer, the person appointed by the employer, a health and safety representative or a member of a health and safety committee. The findings of the investigation must be recorded in Annexure 1.

The type of information to be recorded in Annexure 1 include, amongst others, the following information:

name of the employer;
name of affected person;
date and time of incident;
description of the incident;
suspected cause of incident; and
recommended steps to prevent a recurrence.

Willem le RouxExecutive Consultant mine and occupational health and safety[email protected]+27 82 772 5267

Tyla FosterExecutive mine and occupational health and safety[email protected]+27 82 708 0548

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.