An employer’s liability should an employee contract Covid-19 in the workplace
06 July 2020
The unfortunate reality is that most of our country’s population will become infected with Covid-19 and with the gradual lifting... of the lockdown restrictions, such risk arises rapidly as more businesses are being permitted to resume their operations. Despite this eventuality, employers must implement reasonable measures that will alleviate the risk of its employees contracting Covid-19 while at the workplace. The Occupational Health and Safety Act (OHSA) requires every employer to maintain a safe working environment that will not only protect the health and safety of their workers but that will further ensure, as far as it is reasonably practicable, that people who are involved in the activities of the business (such as clients) are not exposed to health-related perils while at the employer’s premises. On 4 June 2020, the Department of Employment and Labour issued a consolidated directive dictating measures in certain workplaces, to replace the direction issued on 29 April 2020, that employers must adopt in minimising the risk of exposure to Covid-19. Subject to exclusions, this directive applies to employers and workers in workplaces permitted to continue or commence operations under Alert Level 3 Regulations. The measures that must be adopted by employers in terms of this directive include supplying workers with facial cloth masks, hand sanitisers and symptom screening facilities. The directives are silent on the duties of an employer for employees working from the comfort of their homes, despite the fact that this has become the new normal for most employers and employees. The liability of an employer has been extinguished in circumstances where an employee contracts Covid-19 at the workplace or within the scope and course of his or her employment, and the employee may therefore lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA). Although there may be a number of conflicting views on an employer’s positive duty to provide a reasonable working environment for employees working from their homes, it is advisable to direct employees to maintain strict adherence to the company’s Covid-19 measures especially during office hours - such as maintaining social distancing, disinfection of work surfaces and sanitising. Employers should reasonably ensure that the home environments of their employees are safe for working which may include providing employees with safety working equipment they may require, inspection of employees’ homes, and providing necessary instructions, training and supervision where necessary. Employees are also required by the OHSA to take reasonable steps in ensuring their health and safety, therefore an employer may request its employees to confirm the safety of their homes by signing indemnity forms that will indemnify an employer against any possible claims for contracting the virus while working from home. Where an employee, including an employee working remotely, has tested positive for Covid-19 and the Compensation Commissioner has accepted liability (generally after the employee adduces proof that he/she contracted Covid-19 while at the workplace or during his/her course of employment which has resulted in temporary or permanent total disablement), the temporary total disablement shall be paid from the date of diagnosis up to 30 days. An employee will therefore not be able to directly institute a claim against his/her employer should they contract Covid-19 in their place of work or during the course of employment. The Department of Labour continues to monitor and enforce compliance with all laws and regulations. Employers who do not comply therewith may not only be subjected to the payment of fines but may be ordered to close their businesses until they comply with the prescribed Regulations and/or directives. Despite the protection offered by COIDA, employers are advised to comply with issued Regulations and directives not only to mitigate the risk of exposure to Covid-1.9 but to ensure the efficient running of their operations during these difficult times.