BCHC: Are vulnerable employees permitted to return to the workplace during alert level 4 of the national lockdown?
Many employers and employees are under the impression that vulnerable employees who have comorbidities or…
Written by Danny Hodgson
With the emergence of the Corona virus, China has imposed several restrictions and limitations on its travel and trade to mitigate the spread of the virus in order to safeguard its citizens and the international community. Just as China has a duty to protect its citizens, employers have a duty to protect their employees in the workplace. It is therefore important for employers to know what these duties are and what measures can be taken in order to comply with their duties in the event of a viral outbreak.
The Occupational Health and Safety Act imposes a general duty on employers to provide a safe working environment as far as is reasonably practicable and in order to do so employers are required to identify the potential health and safety risks associated with their business. The Act also places a duty on employees to cooperate with their employer’s instructions with regard to regulating a safe working environment and to take reasonable care for the health and safety of their fellow employees. There is also a duty on the employees to report any unhealthy or unsafe situation which comes to their attention to their employer.
Viral outbreaks that can be spread through human contact can pose a huge threat to the health of employees in the workplace. It is therefore important for employers to reconsider their health and safety policies to determine whether they adequately identify the possible risks that viruses may have given the nature of their business and measures required to prevent or mitigate the hazards associated with the spread of viruses. These measures may include an obligation on employees to immediately inform their employer of contracting a virus or the suspicion of a having contracted a virus and to be subjected to medical testing – the prohibition in section 7(1) of the Employment Equity Act against medical testing does not apply if legislation ‘permits or requires’ medical testing or if medical facts or medical conditions justify it. A properly conducted risk analysis that requires medical testing as a measure to prevent the spread of a virus in the work place clearly falls within the exceptions to the prohibition.
It is obvious that an employer’s policy should take into account the nature of the employer’s business. Some businesses are more prone than others, such as those that import goods from another country or send their employees to countries where there is a risk of contracting an infectious disease or those that are in the tourism industry.
Should an employee contract an infectious disease or start exhibiting symptoms associated with an infectious disease they should immediately report this to their employer as required by the employer’s policy. The employer should then ensure that these employees are excluded from the workplace by placing the employees on sick leave or requiring them to work remotely to avoid the risk of the disease spreading to other employees.
These are all measures that are reasonably practicable. The failure to engage in a risk assessment in businesses which may be prone to contact with virus carriers and to take measures to prevent or mitigate the hazard of exposing workers to a virus will constitute an offence under the Occupational Health and Safety Act and if an employee contracts an infectious disease at the workplace due to an employer’s negligence, the employee could apply for increased compensation under the Compensation for Occupational Injuries and Diseases Act resulting in an increased tariff being paid by the employer. Employers should therefore be vigilant to potential risks and impose measures to mitigate those risks.