At the outset, we note that issues of safety and occupational health in the workplace entail mutuality of obligations on employers and employees.
From a Human Resource management perspective, the following few factors should be noted by both employers and employees when considering the impact of COVID-19 pandemic on the workplace:
Obligations of Employees:
1. Section 8 of the Occupational Health and Safety Act, 1993 (OHSA) provides that every employer is obliged to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to the health of its employees. Employers must take such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment, and must provide such information, instructions, training and supervision as may be necessary to ensure, as far as reasonably practicable, the health and safety at work of its employees.
2. Further, section 9 of OHSA provides that every employer shall conduct its undertaking in such a manner as to ensure, as far as reasonably practicable, that persons other than those in its employment who may be directly affected by its activities are not exposed to hazards or risks to their health or safety.
3. Most importantly, OHSA also imposes a duty on employees to take reasonable care for their own health and safety and that of other persons who may be affected by their actions or omissions. They must co-operate with the employer to enable a duty imposed by the statutory provision on the employer to be complied with. Employees must accordingly obey the health and safety rules and procedures laid down by the employer and carry out any lawful orders given in this regard. Employees who act in violation of such rules or who disobey reasonable and lawful instructions in this regard may be subjected to appropriate disciplinary action.
4. In terms of section 14(d) of OHSA, if an employee becomes aware of a situation that is unsafe or unhealthy, s/he must report such a situation to the employer as soon as practicable. This includes any suspicion, in the circumstances that we all now face, that a fellow-employee, client or other person exhibits flu-like symptoms or is running a fever. Needless to say, an employee who feels unwell or suspects they may have contracted a infectious disease is obliged to seek medical help. That includes taking sick leave and ensure that, where appropriate, they do not expose their fellow employees to risk of contracting the infectious disease.
5. In terms of the OHSA General Safety Regulations an employer may not permit a person to enter a workplace where the health or safety of such person is at risk or may be at risk, unless the person enters the workplace with the express or implied permission of and subject to the conditions laid down by the employer.
6. An employer is entitled to post a notice on its premises, if necessary in the interests of health and safety, prohibiting the entry of unauthorised persons, and where appropriate, no person may enter or remain at the premises without the permission of the employer.
7. These provisions entitle employers to impose rules for entry into their premises in order to ensure health and safety, and they may legitimately exclude persons who do not abide by these rules from entering the workplace.
8. In certain circumscribed circumstances it may be within the employer’s right to request travel information of the employee.
In the light of Covid-19, a legitimate requirement for entry may be requiring the disclosure of recent international travel and if so, subjecting the individual concerned to a temperature test. The privacy of the individual should be respected in conducting such tests, and this must be done with the individual’s informed consent. Consent does not need to be given in writing, but it is advisable to obtain written consent for purposes of proof. The manner in which the test is conducted must be as non-invasive as possible, and temperature screeners as opposed to thermometers placed in one’s ear or mouth are recommended. These possible measures are subject to the general proviso that the privacy of the individual employee must at all times be respected and that the employer may not act outside the scope of the law.
9. If the individual objects to the test, the employer may then legitimately rely on other relevant information at its disposal (e.g. excessive sneezing, coughing, whether the person has recently travelled to a location where Covid-19 incidents have been reported, etc.) to determine whether or not to allow the person concerned into the premises. There is obviously an obligation on individuals who have travelled to places which are the epicentre of Covid-19 to disclose this fact and seek medical attention. The same holds true of individuals who may have been exposed to persons who have tested positive for the virus. Such disclosures arise as a matter of good faith and must be treated with the necessary sensitivity and confidentiality by employers.
10. Moreover, the Environmental Regulations issued in terms of OHSA provide, inter alia, that the employer must ensure that the premises are ventilated in such a way that the air breathed by the employees does not endanger their safety. Where there is a danger of unsafe air, the employer must provide the employees (and must ensure that they correctly use) respiratory protective equipment of a type that reduces the exposure to the employee to a safe level. Businesses are therefore required to ensure that the air-conditioning systems at their premises do not expose the employees to the risk of infection.
In light of the Covid-19 disease, the employers may have an obligation to ensure that their employees have access to necessary sanitisers, masks and gloves in the workplace. Obviously, this may place a huge onerous obligation on employers that results in added financial burden. It may well be that employers may be required to take reasonable minimum measures which may only entail providing sanitisers in the workplace. There is undoubtedly an obligation to circulate and transmit information to employees on necessary protocols and preventative measures they are expected to take while in the workplace.
11. In a different article we will deal with the import and effect of the Regulations published by government on Covid-19.
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