Since the introduction of the Level 5 lockdown restrictions from midnight on 26 March 2020, many employees have been working due to their employers being classified as essential services. With the implementation of Level 4 on 14 May 2020 many other employees returned to their workplace as their employers were permitted to operate under the Level 4 restrictions. With Level 3 of lockdown restrictions being implemented from 01 June 2020, many more employees have been able to return to their workplaces.
Employees returning to work from the Covid-19 lockdown will need to show reasonable justification if they halt work on the basis that they may be exposed to the virus.
What does this mean in the context of the employer’s responsibility to ensure a safe working environment in terms of the provisions of the Occupational Health and Safety Act (OHSA) and the Mine Health and Safety Act (MHSA).
Both Acts provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matters connected therewith.
So, if an employer is not ensuring a safe working environment and protection against health hazards for employees who have either been working normally since the inception of the lockdown restrictions or those employees returning to their workplace in the days to come, it effectively means that the legal provisions allow employees to withdraw from a hazardous working situation. In other words, employees may refuse to work if they believe their workplaces are not safe and risk free from possible Covid-19 infections.
However, in the context of Covid-19, it is open to abuse by unprincipled employees or trades unions. This is because employers will be obliged to continue remunerating employees who have withdrawn their labour on the basis of their belief that they may contract Covid-19, unless it can be proven that employees acted in bad faith (which may be difficult or even impossible to do). Only if bad faith can be proven would there be a justification to withhold remuneration (on the basis of no work no pay).
The OHSA and MHSA grant employees the right to withdraw from a dangerous working place. The Disaster Management Act (DMA) Regulations or related directives could also confer this right. Under the MHSA, employees may withdraw from the workplace if there is “reasonable justification” to believe that there is a serious danger to their health and safety. The OHSA does not grant employees an express right to withdraw from a dangerous working place but requires them to report the situation to their employers or health and safety representatives.
The first difficulty with managing the workplace hazard of Covid-19 virus is that it is invisible, because it is a microscopic virus, and even its host may be unaware and be asymptomatic. The second difficulty is that, even though we still know relatively little about the virus, what we do know is that it is highly contagious.
Where employers have provided all relevant instruction, health and safety protocols and personal protective equipment (PPE) to safeguard employees, is it reasonable and rational for employees to exercise the right to withdraw from the workplace because they are (subjectively) apprehensive of contracting Covid-19?
Practically speaking, there can certainly be no issue with granting employees the right to withdraw from a workplace due to Covid-19, where they have reasonable justification. However, in the absence of some objective criteria, it will be impossible for employees to show reasonable justification. Only if employees present symptoms of the virus to their co-workers or test positive for Covid-19 (and that information becomes known to their co-workers), can other employees be said to have reasonable justification to withdraw from the workplace.
Even then, this may not constitute reasonable justification when the employer has taken appropriate steps, such as disinfecting the workplace and screening (on an ongoing basis) all employees who came into contact with the infected employees.
It is suggested that employers should at least:
- constructively engage with Government to set clear parameters on what will be acceptable measures to establish and maintain a safe workplace;
- ensure that an adequate risk assessment is conducted prior to the commencement of work, specifically dealing with any potentially unsafe areas or conditions, and ensure that adequate control measures, including the availability and suitability of PPE, are implemented;
- comply with physical distancing requirements in accordance with the risk assessment, sanitising, screening, isolation and all other requirements set out in the DMA Regulations, where applicable;
- comply with all requirements of employers prescribed in the Department of Labour’s Occupational Health and Safety Directive, where applicable; and
- regularly and frequently convene health and safety committee meetings to proactively monitor the workplace and address any concerns raised by employees about Covid-19 transmission risk.
If, despite all these measures, employees withdraw from the workplace, employers should first consider whether, under the circumstances, employees have a reasonable justification for doing so. If they believe it is reasonable, employers must remedy the allegedly unsafe working conditions.