Coronavirus: Occupational Health and Safety Alert – South Africa

23 Mar 2020

South Africans woke up to an entirely new landscape on the morning of 16 March 2020, following the announcements by President Ramaphosa on the evening of 15 March 2020 regarding South Africa’s precautionary measures that must be put in place to prevent the contraction and spread of COVID-19 Coronavirus (“Coronavirus”).

Employers and other stakeholders across the country are grappling to come to terms with the possible consequences of Coronavirus in the workplace, particularly where employees perform their services in close-proximity work environments, such as mining, construction, education, and certain service industries.

There have been a range of responses to the announcement of President Ramaphosa’s measures on 15 March 2020, from “prepare carefully, but don’t panic”, to full panic.

In this Occupational Health and Safety Alert, we do not give advice, in any manner, regarding what Coronavirus is, how it may or may not be spread, rates of infection, mortality, etc. Rather, we are focused on highlighting the legislative framework that applies to health and safety in the workplace, and we propose some practical measures that can be implemented by employers to comply with the statutory responsibilities.

The starting point is that South Africa has, even before the Coronavirus pandemic, implemented legislation to address national disasters. The Disaster Management Act, No. 57 of 2002 (“the Disaster Management Act”) provides a framework for government and other stakeholders to manage national disasters, once an event has been declared a national disaster. On 15 March 2020, Dr Mmaphaka Tau, as Head of the National Disaster Management Centre, classified the Coronavirus pandemic as a national disaster in terms of the Disaster Management Act. The consequences of this classification include the measures that have been implemented by President Ramaphosa on 15 March 2020.

Occupational health and safety in South Africa is regulated by two primary laws, namely the Mine Health and Safety Act, No. 29 of 1996 (“MHSA”), and the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”).

The MHSA applies to mines as defined, while the OHSA applies to industries other than mines. In both the MHSA and OHSA, the primary responsibility for the health and safety of employees, is placed on the employer. In the case of the MHSA, the employer is the entity which holds the right to mine or prospect. The term “employee” is defined in Section 102 of the MHSA, to mean any person who is employed at or working at a mine. The term “employee” is therefore widely defined, to include contractors and other service providers at a mine.

Under the OHSA however, the employer / employee relationship is recognised and it is in this narrow context that the responsibilities of the employer under the OHSA, apply, supplemented by the responsibilities which are placed on users of machinery.

Both the MHSA and OHSA however also place responsibilities on employers, for the health and safety of persons that are not the employer’s employees, regardless of how widely or narrowly the term “employee” is defined.

In summary, employers (and in the case of the OHSA, users of machinery), have a duty to take appropriate measures to ensure the health and safety of employees, and other persons who may be directly affected by their activities and operations.

The responsibilities placed on employers for the health and safety of employees and non-employees, are not absolute – the responsibilities are qualified by what is reasonably practicable (as defined), or at the very least, what is reasonable in the circumstances, where the term “reasonably practicable” is not used.

The responsibilities for the health and safety of employees and non-employees, is not limited to safety, and specifically includes occupational health.

Section 2(1)(a) of the MHSA provides that the employer must, as far as reasonably practicable, ensure that the mine is designed, constructed and equipped to provide conditions for, amongst others, a healthy working environment.

Section 5(2) of the MHSA requires employers, to the extent reasonably practicably, to identify the relevant hazards and assess the related risks to which persons who are not employees may be exposed, and ensure that non-employees, who may be directly affected by activities at the mine are not exposed to any hazards to their health and safety.,

Section 8 of the OHSA requires every employer, in relation to its own employees, to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of the employees.

In terms of Section 9(1) of the OHSA every employer is required to 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 the activities are not exposed to hazards to their health and safety.

The term “reasonably practicable” is defined in both the MHSA and the OHSA to mean “…practicable having regard to – (a) the severity and scope of the hazard or risk concerned; (b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk; (c) the availability and suitability of means to remove or mitigate that hazard or risk; and (d) the costs and the benefits of removing or mitigating that hazard or risk.”

But what does this all mean in practice?

The “back to basics” principles continue to apply, and like any other hazard, Coronavirus is a hazard that must be addressed in terms of the health and safety systems in place at a workplace. The “back to basics” principles mean that employers should consider the following:

• Conducting an issue-based hazard identification and risk assessment (“HIRA”) specifically in relation to Coronavirus;
• Once the issue-based HIRA has been concluded, employers should identify appropriate measures to be implemented to prevent contraction, prevent the spread of Coronavirus in the workplace in the event that Coronavirus presents in the workplace, and how Coronavirus will be treated, once identified;
• Providing communication and training on the identified hazards, the assessed risks, and the measures to be implemented to address Coronavirus;
• Ensure that appointees under the MHSA and OHSA understand their roles and responsibilities and, in particular, the hazards that have been identified associated with Coronavirus, the risks that have been assessed, and the measures to be implemented;
• Implementing a system of overinspection aimed at “closing the loop” i.e. if, through overinspection, it is identified that the issue-based HIRA is not sufficient, ensure that it is reviewed and amended, that the measures that have been implemented are then appropriately reviewed and amended, that the supervisors understand the reviewed issue-based HIRA and the measures, and that employees receive appropriate communication and training;
• Implement a system of contractor management to ensure that contractors are fully integrated into the management system.

In relation to the issue-based HIRA, the following principles should be considered:

• The HIRA team should be multi-disciplinary (including medical personnel), and should represent a cross-section of the workforce;
• The methodology used to conduct the issue-based HIRA should, in the case of mines, include the aspects referred to in Section 11 of the MHSA read together with the SIMRAC Guideline, and in the case of the non-mining industry, reference should be made to industry-specific best practice.

In relation to the measures to be implemented, the starting point would be to refer to existing compulsory codes of practice that are implemented (particularly on mines) including codes of practice on airborne pollutants, minimum standards of fitness to perform work at mines, etc. and the existing standards, procedures and instructions at a particular workplace. Managerial instructions play an important role in “closing the gaps”, while new codes of practice, standards and procedures are implemented or they are revised.

In relation to health and safety training and communication, the focus should be on ensuring that employees understand what Coronavirus is, the consequences of Coronavirus, and the steps to be taken to avoid contracting Coronavirus or managing it after contraction. Many companies already have medical surveillance and related programmes in place, to deal with infectious diseases, and it may not be necessary to “reinvent the wheel”. Many companies have implemented extensive management of change programmes and these are an ideal starting point.

The measures that were announced by President Ramaphosa can have far-reaching consequences, particularly the prohibition of gatherings of more than 100 people. The use of the term “gatherings” suggests that these “gatherings” are more of a public nature, but could apply equally to the workplace. The measures are aimed at preventing the spread of Coronavirus through contact between persons, and this should be the key consideration when implementing measures to address Coronavirus.

The measures announced by President Ramaphosa will require employers to carefully consider at least the following:

• Remote working i.e. from home;
• Staggered working hours;
• Changing shift arrangements to reduce potential contact;
• Reviewing the use of public transport, including, possibly, providing dedicated transport for employees in small groups;
• Staggering hoisting arrangements at mines to spread out the times over which employees are taken underground and removed from underground;
• Avoiding circumstances where employees stand in queues and/or large groups before accessing workplaces;
• Avoiding biometric access systems and other electronic screening devices such as alco-testers;
• Ensuring that employees are not afraid to self-diagnose and disclose i.e. making employees comfortable with disclosure without fear of consequences such as loss of pay, ostracization, etc.;
• Intensifying hygiene control.

By implementing the “back to basics” principles, employers can demonstrate compliance with their statutory responsibilities in relation to Coronavirus, and implement the measures announced by President Ramaphosa.

We remain available to assist employers and other stakeholders with any initiatives they are considering, to ensure compliance in relation to Coronavirus.

Prepared by Warren Beech, Head of Mining and Infrastructure

See also:

• Health and safety in the workplace: How important is it?
• Automation, IOT and AI can have a positive impact on mining, natural resources, and infrastructure sectors
• #CORONAVIRUS (COVID-19) in SA – What are Employers’ obligations and Employees’ rights during this public health emergency?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)