Community Conversation explores employer liability regarding employee safety

Bowmans senior associate Chloё Loubser discusses workforce-related legal issues during the pandemic.

This week’s CHRO Community Conversation, which was hosted in partnership with Workday, focused on avoiding liability regarding employees during Covid-19. Bowmans senior associate Chloё Loubser took HR leaders through the ins and outs of workforce-related legal issues during the pandemic, explaining how organisations have to remain vigilant about protecting their people and ensuring business continuity.

Despite lockdown restrictions being relaxed to level 1, there is no vaccine for the virus and there have been many predictions of the second wave of infections in South Africa as there have been in many other countries. For months now, employers have had to take action to avoid liability when it comes to the potential risks to employees’ health and safety in the workplace, and having to introduce all the protective measures necessary to prevent the risk of infection.

Chloё covered a multitude of issues, from employer liability in remote working arrangements and danger pay to updates on the latest health and safety directives.

“When it comes to heavily regulated industries that deal with hazardous substances and sectors that are inherently dangerous – like the construction sector, for example – employers have always taken health and safety quite seriously,” said Chloё. “In the past, however, when it came to employers who didn't operate in environments that were necessarily dangerous, they tended not to place too much emphasis on health and safety because there was no immediate need to do so, and the consequences of not taking health and safety seriously were minimal. The pandemic has changed all that.”

New OHS directive

Chloё said many employers have been grappling with having to do things like risk assessments and draft health and safety policies, which were things they would not ordinarily prioritise.

Furthermore, not only do employers need to come to terms with new health and safety standards because of Covid-19, but they are also struggling to keep up with regulations that change quite rapidly. As an example, Chloё referred to the latest version of the OHS directive that was issued by the Minister of Employment and Labour, which came into effect at the beginning of this month.

"This directive has already been amended three times and it's very important for employers to keep abreast of new developments in this space,” she said explaining that the new directive requires employers with more than 50 employees to not only have a risk assessment and workplace plan in place, but also to have a written health and safety policy specifically around protecting employees from Covid-19. These policy documents need to be submitted to the Department of Employment and Labour.

Said Chloё: “Most employers don't even have a general health and safety policy in place, because in terms of the OHSA, this is only required when an employer has been specifically directed to do so, or where a category of employers is so directed in terms of a notice in the Government Gazette. Essentially, the new directive that came into effect on 1 October is the latter and applies to all employers with more than 50 employees. Previously, this requirement in the directive only applied to employers with more than 500 employees, so it has now become more onerous.”

Working from home

Chloё also explained how, according to the OHSA, a workplace is any premises or place where employees perform work in the course of their employment. Therefore, arguably, employers are required to ensure that employees’ home offices are reasonably safe. According to the letter of the law, employers should ideally inspect employees’ premises, but Chloё said it should suffice to simply do everything that was reasonably practicable to provide equipment such as ergonomically sound chairs to ensure employees’ safety while working from home.

CHRO SA managing editor Sungula Nkabinde, who was moderating the Community Conversation for the first time, asked Chloё whether employers could be held liable if an employee developed back pain, for example, while working from home.

“If we can agree that the home office can constitute a place of work, then the Compensation for Occupational Injuries and Diseases Act should apply and the employee could potentially claim from the Compensation Fund. The evidentiary burden is on the employee to prove to the fund that whatever happened to them happened in the course and scope of employment because it is only in that case that they will be able to claim from the fund,” said Chloё, adding that it was potentially easier to substantiate that something like back pain had arisen in the scope of employment, as opposed to a trip on the stairs.

Insightful topic

Following Chloё’s presentation, HR leaders shared their experiences and reflected on what they had heard.

Startek associate vice president for HR Philip Tshikotshi said he found the conversation session very insightful and was greatly appreciative to Chloё because the topic spoke to one of the main challenges they had within their organisation during the pandemic.

“It started with fear coming from our employees who no longer wanted to come to the office because of underlying issues or comorbidities they had. The problem then became one of our people simply not wanting to potentially expose themselves to the virus by coming to work, to the point where some started querying whether they were indeed essential services as they had been deemed at the time. The question I have long been having, and which has been answered today, is what is our liability regarding the health and safety of those employees who are working from home,” said Philip.

“We run call centres and, as I’m sure we can all remember, there were many companies like ours that were in the news regarding the essentiality of their businesses. We found ourselves in the news with myself having to conduct a variety of issues explaining why we are permitted to operate during the lockdown. Throughout all this, we were working on a plan to migrate the majority of our workforce to start working from home. Getting call centre agents to work from home is something that is extremely difficult to do and I am proud that we managed to get at least 80 percent of our workforce working from home.”

Prepare for the next wave

Similarly, Eskom chief medical officer Penny Mkalipe spoke about how valuable she found the conversation, explaining that, at Eskom, they were guided by the health and safety legislative framework.

“The National Institute for Occupational Health (NIOH), a division of the National Health Laboratory Service (NHLS) is a useful resource to contact for advice on health and safety matters including the management of Covid-19 at the workplace, particularly for organisations that do not have occupational health practitioners at their sites,” she said.

Penny added that, given how pandemics typically unfold, organisations have to look at their business continuity plans and prepare for the possible second and third waves of this pandemic, which history has shown can be worse than the first wave.

Said Penny: “In our resurgence plan, we have explored activities at the workplace that we consider possible ‘super-spreader events’ of Covid-19. In our prevention and containment of Covid-19 at the workplace, it is imperative to manage these risks proactively, especially at operations where people are not able to work from homes, such as call centres and customer service centres. It’s about managing the ‘three Cs’ within operations: confined spaces with poor ventilation, crowded spaces and close-contact settings where social distancing is not possible.”

Overall, the conversation provided much-needed clarification on a variety of legal issues that HR leaders were grappling with when it comes to people matters and safety in the workplace during the pandemic.