BY Willem le Roux , Pieter Colyn AND Celeste Coles
mine and occupational health and safety
South Africa: can employees, who are infected with COVID-19, be compensated in terms of COIDA?
The South African Compensation for Occupational Injuries and Diseases Act, 1993 ("COIDA") addresses compensation payable to employees, who suffer from occupational diseases, which has arisen out of, and in the course of their employment.
Section 65(1) of COIDA provides that an employee shall be entitled to compensation in terms of COIDA for an occupational disease, if it is proved to the satisfaction of the Director-General of the Department of Employment and Labour ("Director-General"), that the employee has contracted a disease mentioned in Schedule 3 and that such disease has arisen out of, and in the course of his or her employment (section 65(1)(a) of COIDA); or that the employee has contracted a disease (other than a disease contemplated in Schedule 3) and that such disease has arisen out of, and in the course of his or her employment (section 65(1)(a) of COIDA).
There are two further provisions in COIDA that bear mentioning for the purposes of this article. The first is section 66 of COIDA, which provides that if an employee, who has contracted an occupational disease was employed in any work mentioned in Schedule 3 in respect of that disease, it shall be presumed, unless the contrary is proved, that such disease arose out of, and in the course of his/her employment. Secondly, section 69 of COIDA provides that the Minister of Employment and Labour may, on the recommendation of the Director-General, amend Schedule 3 of COIDA.
On 23 March 2020, a notice was published by the Compensation Commissioner, stipulating that, effective from date of publication, employees who have "occupationally-acquired" the coronavirus (COVID-19) may be compensated within the delineates of COIDA.
Although the term "occupationally-acquired" is not defined in the Notice, it is clear that it refers to an infection that has arisen out of, and in the course of an employee's employment. It is therefore important to keep in mind that the mere fact that a person has contracted COVID-19 is not sufficient for the disease to be compensatable. The infection must have arisen out of, and in the course of employment. For example, the infection of a medical doctor with COVID-19, whose work related to the diagnosis of patients with COVID-19, will be categorised as occupationally-acquired COVID-19 and therefore compensatable in terms of COIDA.
It is important to note that the Notice is not a notice as contemplated in Section 69 of COIDA and therefore Schedule 3 has not been amended by the Notice. Secondly, insofar as COVID-19 is not a disease contemplated in Schedule 3 of COIDA, the presumption provided in section 66 of COIDA is not applicable. In other words, an employee will bear the onus to demonstrate to the satisfaction of the Director-General that his/her occupationally-acquired COVID-19 infection was acquired out of, and in the course of said employee's employment.
It is also imperative that the principle delineated in the case of MEC for the Department of Health v De Necker is applied. In this case, it was provided that if the injury (or condition in this instance), is a risk incidental or necessary to one's employment, then the acquired disease is compensatable in terms of COIDA. The Notice must therefore be understood in the context of this judgment, as well as sections 65, 66 and 69 of CODA – the risk of infection of occupationally-acquired COVID-19 must be a risk incidental or necessary to one's employment.
The Notice stipulates that, for occupationally-acquired COVID-19 to be considered as "occupationally-acquired", the infection must have:
- been a result of single or multiple exposures of confirmed cases of COVID-19 in the workplace; or
- been contracted after an official trip to high-risk countries or areas in a previously COVID-19-free individual.
In other words, if a trip by a person to a high-risk country was for personal reasons, then the infection with COVID-19 will not be viewed as occupationally-acquired and is therefore not compensatable in terms of COIDA.
The following prerequisites must be met:
- occupational exposure to a known source of COVID-19;
- a reliable diagnosis of COVID-19, as per the World Health Organisation ("WHO") guidelines;
- an approved official trip and travel history to countries and/or areas of high risk for COVID-19 on work assignment;
- a presumed high-risk work environment, where transmission of COVID-19 is inherently prevalent; and
- a chronological sequence between the work exposure and the development of the symptoms.
Categories of risk
The Notice delineates different categories of occupations that are at risk. The categories of occupations are differentiated as being: "(v)ery high exposure risk occupations", "high exposure risk occupations", followed by medium- and low-risk occupations. By way of example, one very high exposure risk occupation is healthcare workers (doctors, nurses, dentists, paramedics, emergency medical technicians), who perform aerosol‑generating procedures, for example, intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection, on known or suspected COVID-19 patients. An example of a high exposure risk occupation is healthcare delivery and support staff (doctors, nurses and other hospital staff that must enter a patient's room) exposed to known or suspected COVID-19 patients.
Medium exposure risk occupations include those that require frequent and/or close contact (within two metres) with people, who may be infected with COVID-19, but who are not known or suspected as COVID-19 patients. In areas without ongoing community transmission, workers in this risk group may have frequent contact with travellers, who may return from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category may have contact with the general public (eg in schools, high‑population density work environments, such as labour centres, consulting rooms, point of entry personnel and some high‑volume retail settings).
Low exposure risk occupations are those that do not require contact with people known to be, or suspected of being infected with COVID-19, nor frequent close contact with the general public. Workers in this category will have minimal occupational contact with the public and other co‑workers.
The Notice provides detailed particulars regarding assessments, impairments, and temporary/permanent disability and payments in respect thereof. Importantly, the Notice specifically provides that the employer will be liable for remuneration for days of absence, with regards to suspected and unconfirmed cases of COVID-19, in instances where self‑quarantine is recommended by a registered medical practitioner in accordance with the Department of Health, WHO and International Labour Organisational guidelines.
In respect of reporting, a number of documents are required to be submitted. The ordinary prescribed forms are still required to be completed, but in addition, the Notice also requires additional documentation to be submitted including an Exposure and Medical Questionnaire, as well as exposure history and/or any other appropriate employment history, which may include any information that may be helpful to the Compensation Commissioner. In circumstances, where an employer cannot be traced or will not timeously submit the prescribed report, the Notice provides that an affidavit by the employee infected with COVID-19 must be included. Both electronic and manual submission facilities are available.
The Notice is welcomed, as an appropriate reaction, to provide for statutory reimbursement to persons, who are at risk of infection of occupationally-acquired COVID-19, which risk is incidental or necessary to their employment. For the selfless people, who form part of the categories of very high risk and high risk occupations, the Notice goes a long way to ensure that these employees are included in the employment compensation scheme applicable in South Africa.
Willem le Roux
Executive Consultant | mine and occupational health and safety
+27 82 772 5267
Executive | mine and occupational health and safety
+27 83 327 2474
Executive | mine and occupational health and safety
+27 82 875 8202
COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.
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