Claiming against a workplace related Covid-19 infection: here’s what you need to know

So, you’ve tested positive for Covid-19 after returning to the office this year. What now?

Can you really use the Compensation for Occupational Injuries and Diseases Act (COIDA) to claim against your illness? Well, it’s complicated, suggests Senior Legal Advisor at Strata-g Labour Solutions, Justin Hattingh.

According to recent data from the Department of Employment and Labour there were 11 233 claims registered with the Compensation Fund by 16 November 2020, with the total benefits paid out to date, in the amount of R 15 444 508,10. This is quite a substantial number, Hattingh points out.

South African employers are placed under a strict duty in terms of both the Common Law, as well the Occupational Health and Safety Act (OHSA), to ensure that they provide a safe and healthy working environment. They also have to adhere to the current COVID-19 Regulations promulgated by the National Government or they could face imprisonment or a fine.

Also Read: 27 WC healthcare workers died from Covid-19

According to Hattingh, COIDA would usually fully indemnify an employer where an employee contracts an illness during the course and scope of their duties. An employee would not need to prove negligence on the part of the employer.

“The Increased Assessment Rates under COIDA, however, state that where an employer has been found to be negligent, the increased compensation received by the employee from COIDA may be at the employer’s own cost.

“Under the DMA (Disaster Management Act), employees who get infected while at work have recourse under the Compensation for Occupational Injuries and Diseases Act, and can claim from the Compensation Fund should they be unable to work,” explains Hattingh.

But how are employers able to prevent the spread of infections in the workplace?

The COVID-19 regulations of the current level 3 lockdown place a great responsibility on workplace compliance with fines and jail time being touted for transgressors.

Hattingh says most employers and employees, however, remain unclear on what is required of them to ensure the business conforms to the Disaster Management Act (DMA).

Employers and businesses have already started to feel the might of new laws, as several establishments have been fined, with some managers even jailed for failing to ensure adherence to Covid-19 safety regulations.

Also Read: COVID-19: Threats of fines, jail terms not the way to go – expert

While visible policing and the introduction of fines or imprisonment for not wearing a mask in public were aimed at the general population, employers are expected appoint a dedicated COVID-19 compliance officer. This is necessary to mitigate infections in the workplace and avoid potential prosecution, Hattingh urges.

“He or she will be responsible for the organisation remaining compliant and accurately capturing and storing the data of people entering the work premises, should contact tracing be required. The compliance officer is also responsible for drafting and executing a pandemic policy.”

Any employer that breaches OHSA, he warns , can face a fine of up to R100,000 or two years in prison or both. An individual who breaches OHSA could face a R50,000 fine or one year in prison, or both.

To ensure the effectiveness of their pandemic policies, Hattingh advises organisations to use the expertise of a qualified external service provider to draft or implement such policies.

Also Read: Partygoers video leads to East London business receiving R5K fine

Asking employees for a negative Covid-19 test before being admitted into the workplace could become the norm as the risk is high for the employer should an employee test positive. Businesses where an employee tests positive for COVID-19 must shut down to sanitise the whole work area before work can resume.

“Employers have the right to ask for a negative COVID-19 test because any member of the workplace can be criminally prosecuted to the fullest extent of the law, if they intentionally expose anyone, including customers to the COVID-19 virus,’  Hattingh warns.

Simnikiweh@citizen.co.za

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