In a new report, law firm ENS Africa discusses whether employers are obligated to report and investigate incidents of occupational-acquired Covid-19, finding that it depends on the employees’ type of work.
ENS executives and authors of the report Willem le Roux, Pieter Colyn and Tyla Foster explain that, in terms of Section 11 of the Mine Health and Safety Act (MHSA), the employer is required to notify the Principal Inspector of Mines of any occurrence at the mine that results in the illness of any person.
Owing to the generality of this provision in the legislation, all illnesses caused by occurrences at the mine become reportable and therefore include known cases of Covid-19 in the workforce, including those that are not occupationally-related.
The authors feel that the obligation is “extremely cumbersome” and that the provision should be amended to bring it in line with the obligations imposed by Section 11 of the MHSA, which refer to “serious illness” rather than “an illness”.
Further, the authors point out that the employer has several duties and obligations around operations at its mine, particularly practicable measures aimed at preventing accidents, serious illnesses and health-threatening occurrences.
When a reportable accident, serious illness or health-threatening incident has occurred, the MHSA obligates the employer to conduct an investigation.
The investigation needs to start within ten days from the date of such accident or incident. Following the investigation, employers need to write a report and deliver it to the responsible Principle Inspector of Mines within 30 days of the accident, serious illness or health-threatening occurrence.
The report needs to identify the causes and underlying causes of the particular incident, as well as identify any unsafe conditions, acts or procedures that may have contributed to the incident. The report then has to make recommendations to prevent a similar accident, serious illness or health-threatening occurrence.
THE DEVIL IN THE DETAIL
On March 23, the Compensation Commissioner published a notice that stipulates that employees who have “occupationally acquired” Covid-19 may be compensated in terms of the Compensation for Occupational Injuries and Diseases Act of 1993.
The notice describes occupationally acquired Covid-19 as a disease contracted by an employee, arising out of, and in the course of, his or her employment.
The MHSA defines serious illness as any illness resulting from occupational exposure that affects the health of a person to the extent that it incapacitates the affected person from resuming normal duties for four days or more.
ENS says the question then arises as to whether or not the mere exposure to Covid-19 at the workplace – through interaction with persons who have contracted Covid-19 – is sufficient to satisfy the requirement of occupational exposure or must the exposure to the virus be associated with, or be incidental to, a particular type of work.
“The words ‘occupational exposure’ as contained within the definition of serious illness, are not further defined in the MHSA. To determine whether or not the legislature intended to include the potential source of exposure into the definition of ‘serious illness’, the principles relating to the interpretation of statues must be considered,” the authors note.
The law that regulates the interpretation of statutes provides that words must be interpreted in the context in which it is used, and in its popular sense, unless a word has acquired a meaning in a technical sense, which means it must then be adopted.
The authors say that, when considering the words “occupational” and exposure” in its popular sense, the exposure to a risk or danger must be associated with, or be incidental to, a particular type of work.
This will, however, be determined on a case-by-case basis and depend on the determination of various factors.
The exposure of an individual to a risk or danger at a workplace is not in itself sufficient for such exposure to be regarded as occupationally-related.
For example, a rock drill operator, who is exposed to Covid-19 through the interaction with a fellow employee while underground at work, does not render such exposure as occupationally related, as risk of exposure is not associated with, or incidental to, the job of a rock drill operator.
If an occupational medical practitioner during a medical surveillance examination of an employee is exposed to Covid-19 and subsequently contracts the disease, it will be a "serious illness".
If the employer, however, has reason to believe that the exposure of an employee to Covid-19 is associated with, or incidental to the employee's type of work, the employer must conduct an investigation in terms of Section 11 of the MHSA.